Pandemic puts remote courtrooms on trial

When criminal barrister Merry van Woodenberg argued a recent case in the Court of Appeal she was on a phone in her living room, rather than addressing judges in the splendour of London’s neo-Gothic Royal Courts of Justice.

“It felt surreal,” she says. She was so focused on the task in hand that it did not feel very different to standing in court. “I wore business dress and had a high desk so I argued the appeal standing up.”

When the court gave judgment, Ms van Woodenberg had her headphones on and typed it up. “It felt like listening to the radio but it was a judgment in my case,” she says. She won her appeal, “then I was just left in my living room and thought ‘shall I make myself a cup of tea?’”

Merry van Woodenberg © Brian Lloyd Duckett

Such a hearing would have been unthinkable even a few months ago, when London’s legal district near Holborn was still operating as it had done for centuries. Each morning barristers, in their suits, horsehair wigs and black gowns, trooped off to argue their cases at London’s High Court or the criminal courts.

Now, their offices — or chambers — based in the Inns of Court, replete with gothic dining halls, wood-panelled libraries and chapels set around leafy green squares, lie deserted as barristers and judges work from home.

As a result of the pandemic, the UK courts system and legal profession — usually a bastion of tradition and hierarchy — have been dragged into the 21st century as hearings across the country take place virtually and a handful of crown courts hold jury trials spread across two video-linked courtrooms with participants carefully spaced apart.

London’s Royal Courts of Justice remain closed due to the pandemic © Tayfun Salci/Anadolu Agency/Getty

Courts systems elsewhere are also adapting. In the US, numerous states such as Delaware and Connecticut are urging courts to undertake virtual hearings wherever possible. Some in Singapore and Peru are using Zoom or Google Hangouts.

For some advocates, the virtual experience has been mixed. At the start of lockdown Oliver Kirk, a criminal barrister, used Skype from his living room to make an application at Basildon Crown Court and realised just how much he could cut down his travel time.

He was told to download Skype and contact the court. A clerk then carried the laptop through to a judge. “I realised it saved me around two and a half to three hours of travelling, getting to court and waiting around,” he says. “I think we have all realised the vast amount of time we spend schlepping around the country for a five-minute hearing.”

However, he says that for other complex cases such as speaking to a client who is being held in prison awaiting trial, remote courts have been “far from ideal”.

Michigan’s Supreme Court has heard cases via Zoom video conferencing © AP

Another barrister considers the disadvantages of arguing a High Court case remotely from his bedroom. “Normally you head over to court, get pumped up and put on the wig and gown,” he says. “It was an odd situation but you get used to it quite quickly . . . there was a period where my broadband struggled to keep up.”

For an unlucky few barristers, virtual court hearings from home have been interrupted by the appearance of children or dogs. One judge recently broke off from giving a ruling to open a door for a meowing cat.

Virtual hearings have also been problematic for family courts, where concerns have been raised about the fairness of hearings involving vulnerable and distressed parents who are at home with children.

A recent report on virtual hearings by Nuffield Family Justice Observatory Research noted that one mother at risk of having her four children removed had had to give evidence to the court from a phone in her garden shed as there was nowhere else private to go.

Another judge said he “had to speak to the parents who were sitting in a car outside the hospital where the mother had that day given birth, and I had conducted a hearing removing their newborn baby from them”.

One anonymous legal adviser quoted in the report said of one case: “I could hear a strange sound. I worked out that it was someone sobbing and ascertained it was the mother . . . Had she been in court, I could have noted her distress sooner and given her time to settle herself.”

The upheaval caused by coronavirus has prompted questions about whether the current crisis will trigger a much broader rethink.

Richard Susskind, author of Online Courts and the Future of Justice, has helped set up Remote Courts Worldwide, a website detailing how courts around the world are deploying technology during the pandemic. He believes the current crisis has acted as a catalyst for greater use of virtual hearings and says it could also prompt a more fundamental rethink of how to solve disputes.

“What happens is that cultural obstacles disappear and we innovate,” Mr Susskind says. There is also the question, what is a court? “Is it a place? Or is it delivering a service?” He suggests courts of the future may not exist as a physical place but may be an online hearing of parties arrayed like participants in the television quiz show University Challenge, or even in a 3D virtual reality recreation of a courtroom.

Richard Susskind © Handout

A recent High Court trial in a virtual courtroom gives a glimpse into what may lie ahead. The $530m case brought by the Republic of Kazakhstan and its national bank against Moldovan businessman Anatolie Stati, his son Gabriel, BNY Mellon and others was conducted via Zoom. Barristers, witnesses and interpreters appeared from home and it was streamed for public view on YouTube. Some upcoming trials are likely to be “hybrid” trials with a handful of socially distanced lawyers in the courtroom and other parties connected to the hearing virtually.

Tom Lidstrom, partner at law firm Linklaters — which represented BNY Mellon — believes we will see more virtual hearings, particularly pre-trial ones. “There was already a move towards video conferencing and phone hearings and this replicates what’s happening in international arbitration, where the arbitrators deciding a case might be based in three different countries,” he adds.

In his book Mr Susskind points out that more people in the world now have access to the internet than to justice. According to the OECD, only 46 per cent of people live under the protection of the law, whereas more than 50 per cent of people can access the internet in some way.

For many, existing court systems do not serve them well. Mr Susskind points to “staggering backlogs” of court cases in some countries — for example 100m cases in Brazil and 30m in India. Even in countries with advanced legal systems, they “are under-resourced and the resolution of civil disputes invariably takes too long, costs too much, and the process is unintelligible to ordinary people”.

He has called the shift to online courts as “an unscheduled and vast experiment”, which has so far worked “rather well”.

New York City’s criminal court has started conducting all arraignments by video conferencing to limit the number of people in courthouses © AP

Jordan Furlong, a legal market analyst who runs Law 21, a Canada-based consultancy, says the future may not involve putting video into the courts but rethinking the courts system to make it more accessible to the public, who can’t always afford representation.

Some disputes have already been dealt with online — without lawyers — for a number of years. Non-court services that resolve such cases include eBay, where 60m disagreements among traders are resolved each year.

Canada’s Civil Resolution Tribunal is an online service in British Columbia that offers a state-provided system designed to be used by members of the public — rather than lawyers — to resolve personal injury motor claims as well as hearing disputes about recovery of personal property, and condominium disputes.

However, many barristers say there will always be a need for full hearings in court. Jury trials in criminal courts are unlikely to be conducted online and lawyers say civil disputes that hinge on the credibility of witnesses are always better conducted in person.

Anthony Metzer QC, head of Goldsmith Chambers, says he could see more cases being done remotely. But he believes it is more difficult to see this happening “where there are jury trials which require direct connection with the jury, or in family or immigration hearings where there needs to be interaction with and reassurance for clients. You simply can’t get that familiarity on Zoom.”

Lawyers and barristers also say social interaction also remains important. Mr Metzer says barristers have been using Zoom to stay in touch and discuss work but adds: “What can’t be replicated so much is the congeniality and social aspect of chambers where you can ask a colleague about a point of law, or talk about a difficult hearing over a drink at the end of the day.”

Mr Lidstrom agrees: “The type of accidental interaction you get in chambers or in law firms is lost at the moment. We all miss it.”

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