By Celia Kitzinger, 26th February 2023
On Wednesday 22 February 2023, I watched two and a half hours of a hearing before Mr Justice Moor in the Royal Courts of Justice – without any sound, because Cloud Video Platform was malfunctioning.
Cloud Video Platform (CVP) often malfunctions. I’ve heard lots of judges complain about it during court hearings, as court staff have struggled to ensure that people attending or observing online can see and hear, or be seen and heard.
A survey of 1,500 judges asked to express an opinion on video conferencing technology in use across Britain’s courts and tribunals found that most prefer using Microsoft Teams for remote hearings rather than the made-to-order video platform bought as part of a £1.2bn Ministry of Justice digitisation initiative.
Usually, when there’s a problem with CVP, judges wait 10, 15, 20 minutes while clerks or IT people (if they’re lucky enough to have any) try to fix it. If that doesn’t work, I’ve seen judges (in all-remote hearings) switch to Microsoft Teams instead, or in hybrid hearings they’ve moved everyone to a different courtroom where CVP is functional. It’s deeply frustrating for judges and a massive waste of court time. HMCTS (His Majesty’s Courts and Tribunal Service) should be hugely embarrassed about this IT purchase.
Until this hearing, though, I’d never had the experience of a judge and two counsel simply deciding they were “content” to proceed despite the fact that the CVP audio system was entirely non-functional and nobody on the remote platform could hear anything from the court. I’m not sure who everyone was on the CVP system, but they included at least three members of the public as observers, and someone identified as a Legal Director for an NHS Trust. (I hope they didn’t include P.)
Several of us explained, in the ‘messages’ box on CVP, that we couldn’t hear anything. We were told that the judge knew that, but that he’d decided to go ahead with the hearing anyway. I asked if there would be some attempt to fix the audio at some point and was told yes, so I remained on the platform in the hope of restored functionality. (One of the other observers left within an hour, another held on for nearly two hours). But the CVP audio was never fixed, so I ended up observing about two and a half hours of silent court. (I gather the judge assumed that I must be able to hear, since I remained on the platform – but his clerk most certainly knew otherwise!)
This blog is about what it’s like to watch (but not hear) the court in action. What can you say about a hearing when you actually couldn’t hear a single thing?
The hearing (COP 14053355) was before Mr Justice Moor in Court 43 at the Royal Courts of Justice. It was listed as “hybrid CVP” and For Hearing in Open Court”.
To attend via Cloud Video Platform, all I needed to do is click on the link, once I eventually got it, and then answer questions about whether it can use my audio and video [yes] and type my name in a box. There’s helpful information for those who’ve never used it before on how to join Cloud Video Platform for a hearing here.
After listening for a bit to “Waiting for the Conference Host to join” in a virtual waiting room, the screen springs to life and I can see the courtroom.
The Royal Courts of Justice (RCJ) is an amazing Gothic Revival building opened by Queen Victoria on December 4th 1882.
When I’ve attended in person, I’ve first gone through airport style security – on a bad day that takes about half an hour – and then walked through the stunning Great Hall, which is like a cathedral with a marble floor, majestic arches and stained-glass windows. You walk the length of the Hall, turn left, along a corridor through several heavy wooden swing doors, out into a courtyard and turn right – and that’s where all the in-person COP hearings I’ve attended have been held, in the Queen’s Building, a disappointingly modern and rather undistinguished building at the back. And that’s where today’s hearing is, in Court 43.
I don’t think I’ve been in Court 43 in person, but it looks very much like all the courts in the Queen’s Building (and county courts across England and Wales) that I have been in. The closest comparison I can think of is a slightly shabby, utilitarian, small university lecture theatre in an ‘old’ university, devoid of charm or gravitas. It has dark wood-panelled walls and paler wooden lecture-style seating – fold-down seats for the front two rows and bench-style seating behind that. It would seat maybe 40 people at most when completely full (outside of covid restrictions).
Cables (for laptops, I think) snake across the floor. There are five little bottles of mineral water on a table at the front (though several people have brought their own reusable flasks) and a pump dispenser bottle that looks like hand sanitiser to one side. Paperwork is strewn over the available surfaces. The people in both the front and second rows all have laptops (or maybe one is an i-pad) and those I take to be solicitors are typing away during most of the hearing.
People who’ve not attended court hearings in the RCJ before sometimes imagine that observers sit in a raised public gallery like the Visitor’s Gallery in the House of Commons or the Public Gallery at the Old Bailey, where criminal trials are held – something like the dress circle in a theatre. But no, in the RCJ observers just sit in the back row of a pretty flat room – though it looks from the video-screen as though the seating at the back in this court room is very slightly raised, with one small step up.
The camera is angled from the front of the court – I would guess about level with and to the left of the judge. What’s on screen seems to me pretty close to a ‘judge’s eye view’ of the court. The judge isn’t on camera (and I never see him). I can’t see anything of the judge’s bench (the raised desk at the front) or the front of the court.
This view on the video-platform is very different from the view I get in physical courtrooms, where I sit at the back of the court. My view is usually the back of everyone else’s heads, and across them (or through the gaps between them) to a distant judge. The camera in this hearing is as if I walked to the front of the court next to the judge and turned around. I can see everyone’s faces!
There are seven people visible on screen: two in the front row, three in the second row and two in the third row.
It’s immediately obvious which ones are the barristers. They’re the two in the front row – both wear wigs and gowns, and the male barrister (I can’t see the female one properly) is wearing a jabot – otherwise known as a ‘court bib’ or ‘neck doily’ – two rectangles of white linen, designed (in 1640) to conceal the collar of their shirt.
“These pieces of linen were thought to be an essential component of upper class, male fashion in the baroque period, and were originally very wide and flamboyant. By the 1860s, they had become two simple rectangles, which are still worn by barristers today; the two rectangles are even said to represent the tablets of Moses in the Old Testament.” (Scott Haley in Lawyer Monthly).
Usually, the barristers introduce themselves and their ‘teams’ at the beginning of the hearing. I don’t know if that happens today, since I can’t hear anything, but I think I recognise the female barrister anyway. She’s on the very far right of my screen with (mostly) only her right shoulder and right hand visible to me (when she gesticulates, which she does a lot). But on occasions when she’s still standing up but stops talking and gazes up (I assume at the judge) her face swings into view: small and fuzzy on the screen – but I think it’s Nicola Kohn (her last name is pronounced to rhyme with “John”, as I’ve heard her tell several judges in previous hearings). I don’t recognise the male barrister.
I email the court clerk and she helpfully provides the names of both barristers and the parties they’re representing: Nicola Kohn of 39 Essex Chambers is counsel for the NHS Foundation Trusts and Martin Westgate KC of Doughty Street Chambers is representing the person at the centre of the case (P).
I don’t know (because I couldn’t hear the introductions and the court clerk doesn’t tell me) whether Martin Westgate is acting for P directly (i.e. in accordance with her instructions) or whether he is acting in her ’best interests’ as determined by a third party – most likely the Official Solicitor. The latter is much more common, because (with rare and significant exceptions) P is almost always deemed not to have ‘litigation capacity’.
It’s conventional for solicitors to sit behind the barristers they instruct – so I look at the second row. There’s one young woman with long dark hair directly behind Martin Westgate (on the left of my screen) so I take it she’s his instructing solicitor. And behind Nicola Kohn (on the right of my screen) there are two young women sitting next to each other – also with black jackets and laptops – who I take to be solicitors instructing her (though I don’t know why there are two of them).
In the third row there’s a man in a grey suit making notes in a black notebook (on the Nicola Kohn side of the courtroom) and then a couple of seats away from him, pretty much in the centre of the row, there’s an older woman in a black top with a white necklace, surrounded by a mass of paperwork. Neither of them looks like ‘family’.
I look around the court, and on the video-platform, to see if there’s someone I can readily identify as P or P’s family members. This is sometimes obvious online – for example, when a couple attend on a single screen with a domestic backdrop (maybe parents of P?) or when someone is present from a hospital bed (P?)). Looking at people in a physical courtroom, I wonder about anyone clearly not ‘attached’ to the barristers and solicitors, or not dressed in traditional dark clothing, or people who appear anxious and distressed. Are they observers? Family members? P themselves? But everyone here looks as though they have a professional involvement in this case, rather than a personal one. I get the impression that this hearing is happening in the absence of the person at the centre of the case (and their family) – and I wonder why.
I don’t think anyone is observing the hearing in person as a member of the public. I know that journalist Brian Farmer is not in court today.
Watching this court hearing unfold in silence is a bit like watching an old-fashioned black and white movie. Everyone is wearing black, white or grey: the only colour is the sepia-toning of the lighter wooden seating.
I can see the barristers speaking – first one, then the other – and I try lip-reading, but am entirely unsuccessful.
With nothing to hear, I pay attention instead to the small movements of the courtroom.
Counsel for P moves between his laptop and paperwork, on his left, and the wooden boxy laptop stand on his right, which he often uses to lean on when he’s standing up. He gesticulates quite a lot as he speaks: once he holds both hands in front of him at shoulder height, palms outwards (it looks like a ‘surrender’ gesture); on several occasions he chops the air with his right hand – maybe in beat with his speech, maybe enumerating his points? Occasionally he does what lawyers call “turn my back on the court” (for which they ask permission of the judge): i.e. turn around to consult with, or receive information from, his solicitor seated behind him. (Once she leans forwards and taps his back to indicate her wish to convey something.)
Counsel for the Trust is only half-visible (vertically) on screen for most of the hearing: she slides in and out of shot depending on where she’s looking. But I can see her repeatedly taking her glasses off (presumably when she needs distance vision to see in the direction of the judge) and then putting them back on again when she looks down at her laptop and the paperwork. She gestures with her right hand (often holding her glasses). She hikes up her gown over her shoulders several times. She connects her laptop to a power source. She sips from a glass of water.
Other people in the room have characteristic fidgets that I come to recognise. One keeps pushing his glasses back up against his nose with a fingertip. One repeatedly flicks back her long hair behind her right ear. People get things out of their bags: a sweet, a tissue, lip salve, a mobile phone (briefly consulted and returned).
It’s hard to concentrate, and not very rewarding to watch. I intermittently move to my emails, or wander off to get a cup of coffee, or check out my social media accounts – still waiting, increasingly more in hope than expectation, for the restoration of sound.
Then, at around 15:40, something happens. There’s a restlessness in court. Neither barrister is standing or speaking, and people are moving around. The older woman in the third row back gets up and moves off-screen – but she’s not left the building (I assume) since her paperwork is still strewn over the surface near where she was sitting. I think she’ll be back soon (maybe a toilet visit?). Hands reach for the water bottles at the front, but I can’t tell whose hands they are: two of the five bottles are removed. And now somebody new is in the frame. A young woman, dark suited like everyone else, but someone I’ve not seen before enters from the left of my screen and scoots down the row towards the man in the grey suit, past the place vacated by the older woman. She sits down next to the man and she seems to be engaged (briefly) in conversation with him. Who is she? So, there are actually eight people in court, not seven, as I’d thought (plus, of course, the judge and the court staff or clerk, who must be there too, though I can’t see them).
Five minutes later the court has settled, and the barristers are alternately speaking and typing again – but the older woman doesn’t return.
Then it dawns on me. She must be a witness and she’s still in court but I can’t see her because she’s up at the front somewhere, and she’s giving evidence. And that’s probably what the younger woman who’s suddenly appeared in frame was doing earlier. So, what I’ve been watching hasn’t been submissions, and lawyers dealing with questions and interventions from the judge, as I’d assumed, but witnesses being sworn in, giving evidence and cross-questioned. Why wasn’t the camera on the witnesses?
It’s not that common to have the opportunity to observe witnesses giving oral evidence in the Court of Protection. That’s what I should have been seeing (if anyone had thought to rotate the camera so I could see the witnesses on the stand) and hearing (if the audio had functioned as it should).
It all ends at about 16.30. The barristers whip their wigs off immediately. Then everyone is gathering up their bags and putting away their laptops and paperwork.
Cloud Video Platform continues to run in the empty courtroom.
After 10 minutes I exit the platform.
What did I miss?
At 18.03, after the hearing was over, I was sent a Reporting Restriction Order (RRO) along with the Position Statement on behalf of the applicant Trusts – one Trust responsible for P’s obstetric care, the other for her mental health.
The RRO tells me that the Court was asked to consider:
“(a) [P’s] capacity around her obstetric care and treatment; and
(b) If [P] is deemed to lack capacity, whether it is in [P’s] best interests to have a planned caesarean section, to be undertaken under spinal anaesthetic.”
The RRO includes a schedule with P’s name, the names of three people with responsibility for P’s care, and the names of the responsible solicitors acting for the parties. I google them – find photographs, match faces to names.
The Position Statement tells me that P is 39 weeks pregnant and “suffering from first episode psychotic illness; requires a caesarean section to ensure the safest possible outcome for her and her baby and, in the view of all the clinicians responsible for her care, lacks capacity to conduct these proceedings and to make decisions regarding her obstetric care and support”.
There is a disagreement about whether or not P has capacity to conduct proceedings and to make decisions regarding her obstetric care. The Trusts think she doesn’t; P’s own legal team think she does. “As a result, live evidence will be taken in court and the two positions tested”. That’s what was happening during the silent hearing.
I’m told that the hearing will continue on the following day – with submissions and an oral judgment. Unfortunately, I’m not able to attend, but I let other potential observers know – and both the journalist Brian Farmer and the medical law and ethics researcher Ruby Reed-Berendt were there on 23rd February 2023 (the latter having also sat through nearly two hours of today’s silent hearing). Brian’s report is here (“Woman with mental health difficulties gives birth after judge approves C-section”) and Ruby’s will follow shortly as a blog post for the Open Justice Court of Protection Project.
Three members of the public attempted to access this hearing on Wednesday 22nd February 2023: me and two academics working on medical law and ethics. It had been listed on the Royal Courts of Justice Daily Cause List as “For Hearing in Open Court”.
It ran over three days – and for two of those days there were in fact observers present who could both see and hear the proceedings. I understand that the hearing was moved to another court to enable remote access on the third day.
But on Wednesday 22nd February, when witnesses gave evidence and the court addressed the crucial question as to whether P did or did not have capacity to instruct her own legal team, and to make her own decisions about her obstetric care – on that date, Cloud Video Platform was malfunctioning, and the court did not delay the hearing to try to get it fixed or to move to another courtroom.
I understand that the court (and the lawyers) were desperate to get on with this hearing: it was obviously urgent given that P was 39 weeks pregnant. I don’t think there was a conspiracy to exclude us. But some people will think that. The email inbox for the Open Justice Court of Protection Project is full of desperate correspondence from people who tell us they’ve suffered harm from this Court – including deception, exclusion, unfair treatment, and manifest injustice. I am not immune to those communications – especially in the aftermath of the debacle concerning closed hearings and the new Guidance from the Vice President authorising the court to “cross the line from silence to active deception” as “a last resort” (§27(2)).
Here’s what I wrote to Counsel for the Trusts (and I gather it was shared with the judge):
I can see from the PS (which says that P is 39 weeks pregnant) why you would be desperate to proceed. But I would have hoped (given the very serious decision being made, and the presence of at least 3 observers and the Legal Director of the NHS Trust on the link) that maybe 10-15 minutes could have been given over to trying to fix the problem with CVP, or move to another court. That’s what’s happened in other cases, including urgent serious medical treatment cases. (For example, I’m personally aware of three hearings before Hayden J and one before Poole J where judges have moved to a different courtroom because of CVP problems.)
Our experience as observers today was, of course, enormously frustrating. A couple of people had rearranged their schedules to observe this case. We’re told that the judiciary is deeply committed to transparency and that it’s “a fundamental principle” in the Court of Protection – but it was abandoned very quickly today. It didn’t feel as though our presence as observers was valued at all. Given a technical hitch, we were quickly dispensed with. There was no formal attempt from the judge to explain or apologise: it was left to the poor member of staff who corresponded with us about what was going on. This episode has created some scepticism about the court’s commitment to transparency – not least because it relates to an area of the court’s work (court-ordered caesareans) which as you must of course know is already a source of some disquiet amongst members of the public, including childbirth professionals.
We acknowledge, of course, that making the right decision in a timely fashion for P is the most important consideration for the court – but the ideals and principles of transparency in a democratic society are part of, and integral to, “making the right decision” for P. The presence of observers is supposed to protect P against the arbitrary use of state power and to keep the judge while judging under trial. Excluding observers without taking the time to fix or manage a technical hitch, so that a judge can get on speedily with ordering invasive surgery in our absence, is deeply concerning.
I will be raising my concerns about the (very frequent) malfunctioning of CVP with His Majesty’s Courts and Tribunal Service, whose responsibility it is. But in my view, a judiciary committed to transparency as a ‘fundamental principle’ needs to accept more responsibility for ensuring public access, despite the challenging conditions created by an embarrassingly expensive non-functional court video platform. Two days later, I observed a (fully remote) hearing before this same judge conducted via MicroSoft Teams: it worked perfectly.
Open justice is an important protection and safeguard for the vulnerable person at the centre of the case. Decisions to impose draconian measures (deprivation of liberty, invasive medical treatment) should not be made in secret.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 400 hearings since 1st May 2020. She tweets @KitzingerCelia
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