The Coronavirus Act 2020 and the new remote hearings protocols will make remote court hearings the new normal and lead to a step change in the way that courts and tribunals hear cases from now on.
Remote Court Hearings: Before COVID-19
HM Courts and Tribunals Guidance states that: “The principle of open justice is a longstanding feature of our legal system. The public has a right to know what happens in our courts and tribunals, and public confidence in the justice system relies on transparency.”
However, in the move to remote court hearings where the participants attend by video from remote locations, the danger was that the public observer would be unable to access the hearing of relevant courts. This is because the nature of the technology and process required to access a remote court hearing, in terms of invitations and passwords, by its very nature tends to exclude public and media observation and takes place in cyberspace instead of a physical court room.
How can the media, a researcher, or any ordinary member of the public observe proceedings if everything is done online with access links and passwords shared mainly between the courts and the litigants and their advisers?
How the Courts are Adapting to COVID-19
One unexpected effect of the Coronavirus emergency is to encourage the courts and tribunals to adapt to remote court hearings with great speed. Public health concerns and the need for social distancing are leading to online court hearings becoming the new normal.
A Remote Hearing Protocol has been published and provides practical guidance for the conduct of remote court hearings in civil as distinct from criminal cases. In addition, reports of early remote court hearings involving the Supreme Court, the Court of Appeal and the High Court held in the new lockdown era tell of successful remote court hearings being completed even in complex and sensitive cases with oral examination of witnesses in remote locations.
It seems that everyone involved is adapting quickly and the resultant costs savings will not be forgotten by those responsible for managing court budgets nor the barristers and solicitors involved.
The law is in sections 53-57 and Schedules 23-27 of the Coronavirus Act 2020, and these provisions greatly widen the situations in which video links and remote technology can be used in courts and tribunals. They also allow the court to live-stream the remote court hearing and create new offences for the unauthorised recording of remote court hearings.
The House of Commons Library briefing contains specific detail of the legislation and the explanatory notes to the bill make it clear that fully remote court hearings may now take place:
“93.The Bill amends existing legislation so as to enable the use of technology either in video/audio-enabled hearings in which one or more participants appear before the court using a live video or audio link, or by a wholly video/audio hearing where there is no physical courtroom and all participants take part in the hearing using telephone or video conferencing facilities.”
In terms of open justice, the notes also say:
“94 Provisions are also made within the Bill to enable the public to see and hear proceedings which are held fully by video link or fully by audio link. This enables criminal, family and civil courts and tribunals to make directions to live stream a hearing which is taking place in this manner.”
And the Remote Hearing Protocol states that:
“8. As to [public or private hearings], remote hearings should, so far as possible, still be public hearings. This can be achieved in a number of ways: (a) one person (whether judge, clerk or official) relaying the audio and (if available) video of the hearing to an open court room; (b) allowing accredited journalists to log in to the remote hearing; and/or (c) live streaming of the hearing over the internet. The principles of open justice remain paramount.”
How will remote court hearings be planned?
The court or tribunal office suggests to the parties an appropriate remote communication method. However before any remote hearing can begin the court will consider (i) whether the remote court hearing is to be in public or in private; if in private, on what grounds, and (ii) how is the remote court hearing to be recorded, or can an order properly be made to dispense with recording? It is important to note however that it is not permitted for the parties themselves to record the hearing without the judge’s permission.
Remote court hearings must be held in private if the court is satisfied that it is, for any reason, “necessary, to secure the proper administration of justice”. In such a case, however, a copy of the court’s order must be published on www.judiciary.uk, unless the court otherwise directs although non-parties may apply to attend the hearing and make submissions, or apply to set aside or vary the order.
What methods for remote court hearings are used?
There is no prescribed method for remote court hearings. At the moment, BT conference call, Skype for Business, court video link, BT MeetMe, Zoom, Google Hangouts Meet, FaceTime or ordinary telephone calls can be used. It seems most courts prefer Skype for Business, and given the current security concerns with Zoom, it may be that until these issues have been fixed other methods will be used.
What security issues are posed by using Zoom and other videoconferencing tools?
The security issues with Zoom that have been reported include:
- hijacking or “Zoom bombing” of remote court hearings by outsiders because Zoom uses a short number based URL that can easily be generated or guessed by hackers
- the absence of end to end encryption which would only allow the users involved to read the communications
- security flaws that allow hackers to take over a Mac using Zoom and control the webcam and microphone
- the “attention tracking feature” in Zoom which allows the host to see if the user clicks away from the Zoom window for 30 seconds or more – hence the judge could see if counsel were paying attention to the proceedings or not
- Zoom was found to be sending data from users to Facebook for advertising purposes
Obviously, these issues are of great concern to those involved in remote court hearings especially where the hearing has been designated as a private hearing.
Mick Tennent, CTO of IDP Cyber, elaborated on how users can mitigate these problems:
“Users of these videoconferencing services should take care to familiarise themselves with the default security settings available. Many allow for password protected meetings and waiting rooms, to restrict attendees to only who the host has selected. Platforms such as WebEx (Free unlimited use for less that 100 participants) offer end-to-end encryption.”
“Zoom has had a lot of publicity recently and has some outstanding security items, but by following good conference management techniques, most can be averted.”
Regarding how law firms can further mitigate cybersecurity issues:
“In the coming weeks, the most savvy firms will be taking steps to respond to security issues and add specific privacy measures for additional defence. It is important to ensure that participants are managed – unknown attendees or those who won’t speak with a phone number on the call should be dismissed. You should also ensure you password protect your meeting, ensure you have a secure connection where possible and be mindful of shared meeting content and finally, be mindful of where you are and being overheard.”
Regarding questions about the overall security of videoconferencing:
“While many have been raising cybersecurity concerns about videoconferencing, the truth is it is no less secure than our normal forms of communication, such as your corporate email platform.”
What should be prepared for remote court hearings?
Each side must prepare an electronic bundle of documents and an electronic bundle of authorities for the remote court hearing. The electronic bundles should be indexed and paginated and should be provided to the judge’s clerk, court official or to the judge (if no official is available), and to all other representatives and parties well in advance of the hearing or as directed by the court.
During the remote court hearing, as a general rule counsel is not robed, i.e., no wigs, and presents sitting down rather than standing up.
COVID-19 has provided the impetus for courts and tribunals and barristers to make a step change in the use of remote court hearings and overcome the perceived difficulties with such hearings. As the use of remote court hearings becomes familiar to courts and barristers, I predict that the associated costs savings will be the driver to widespread acceptance so that in the future hearings in person may become the exception rather than the rule ie the reverse of the situation pre-coronavirus pandemic.
To find out more about remote court hearings and how to prepare and file electronic bundles for remote court hearings get in touch.
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For professional and insurance reasons Patrick is unable to offer any advice until he has been formally instructed.