The virtual courts revolution: how do remote hearings work and do solicitors think they’re fair?

The coronavirus crisis has forced the justice system to go ‘virtual’ at a speed few would expect in a business which is unrenowned for fast-track innovation. In order to reduce the chance of transmission 90% of court hearings were held remotely in the last two weeks of April, according to court management agency HMCTS.

Magistrates courts, which usually deal with the majority of criminal cases, have had to stay open throughout the crisis to deal with urgent cases, such as defendants held in police custody. Physical courtrooms remain open and staffed, but lawyers, probation, defendants and even judges are able to remotely participate in court proceedings.

Defendants are almost always kept at the police station, where they might take legal advice from a solicitor through a videolink before appearing in court on a screen. Usually they are in a specially set-up room, but if they display Covid-19 symptoms a laptop may even be brought to the door of their cell by masked and gloved officers.

One courtroom may be linked to two or more police stations across London, requiring considerable coordination by a virtual ‘host’ to keep proceedings moving efficiently. 

Although no trials are yet being held virtually, defendants who are charged with a crime must formally appear in court to admit or deny an offence.

What comes next is crucial, if an accused offender pleads not guilty judges must fix their trial date, often months away, and the judge must decide if the defendant remains free in the meantime. The prosecution and defence’s ability to argue effectively is key to the right decision being made.

The work that has been achieved to create a working system for remote hearings at such a pace has been praised as an important step towards keeping court users safe. But does this virtual system give defendants a fair hearing?

Are remote courts working?

There are issues with the effective running of the system, which could be attributed to the speed with which it was brought into operation. Lost connections, missed calls and muted mics regularly cause delays.

Although there is some criticism of the efficiency of the system, most defence solicitors say this was a necessary step for everyone’s safety that hasn’t jeopardised defendants’ right to a fair hearing.

Do solicitors think defendants are getting fair hearings?

Criminal defence solicitor Nicola Babb of Armstrong Solicitors was representing a client at Croydon on the day the system was first tested:

‘It’s amazing when you think it’s been done in one month, we’re not an area of business where you can expect fast change,’ she said. I saw the whole thing unfold, a massive effort was put in by every part of the system to make this work, a duty solicitor, a sergeant from the police liaison office came to the court.

‘They really cracked it and got a system where we could give advice and get a hearing going through very difficult circumstances. I did a court hearing today and it was the easiest one to date, it was not totally easy, it’s difficult because you’re waiting and don’t know when you’ll be called on. 

‘It’s not as simple as it seems, but at the same time from the point of view of keeping people safe, it’s absolutely worthwhile. We’re ensuring justice is done, making sure we can go to court, family can still go and the press can dial in. 

‘I didn’t feel disadvantaged, it’s weird doing advocacy in this way in a suit in your lounge, but you get past these things. I think we’re quicker, you seem more urgent. I felt I was heard, my client was able to hear and interject with information when needed. 

‘I have been in other ones where it is not so easy for clients, it’s not 100%, not perfect, but it’s a pretty good show for what we need at this time.’

Sound quality and dropping internet connections are the most common technical issues being experienced at virtual hearings. During her clients hearing Ms Babb had to ask the judge to summarise what a probation officer said after they forgot to speak into a microphone.

But fellow criminal defence solicitor Daniel Caviglieri is more concerned about the effect remote hearings are having on his ability to gain his clients’ trust and effectively convince judges of the best course of action. He said: ‘It’s very difficult to persuade anyone of anything through a video link, being able to look them in the eye, to be able to read facial expressions. 

‘It’s human interaction, especially when the video link is with a friend staring face to face, you’re looking into a room and can only see the bodies of people there. If there’s any art to advocacy, it’s about reading the situation, [videolinks] make it more perfunctory, like they are being rubber stamped rather than a real opportunity to put your case forward.

‘It’s an unnerving experience because you can’t read the room, maybe it’s a skill I’ll have to develop. What I plan to do in the future is go to the station and then go to court. I can’t see how either I’m letting my clients down or I’m not being as persuasive, I know it will be more hassle and longer train journeys.’

Defence solicitor Shaher Bukhari said the court were trying to operate the queue of cases like a physical court. ‘If it’s a case management hearing it’s fine, I don’t think it’s ideal for bail applications or plea hearings or trials,’ she added.

Adil Syed, criminal defence barrister who represented Ben Wallace, said there was less unnecessary travelling and he didn’t see any disadvantages for his clients.

‘Actually it’s been very good, it’s a much better way of working, it’s more efficient,’ he said. ‘I spend a lot of time travelling, for example, I had to go to Ipswich but it was all over Skype, job’s done.’

Solicitor David Wilson, who also defended two clients at Croydon last week said: ‘I have appeared at crown courts by video link for bail hearings and observed it was as if it would have been if I was present. 

‘If I thought it was unfair I would definitely be complaining about it in court.’

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