"In-person" court hearings should be recognised as the default where the outcome of a case is at stake, according to the four professional bodies representing UK and Irish barristers and advocates.
In a joint statement issued today, the Faculty of Advocates, the Bar Councils of England & Wales and of Northern Ireland, and the Bar of Ireland, say that while they support the continued use of technology in the courts, "The universal sentiment across the four Bars is that remote hearings deliver a markedly inferior experience."
From experience during the COVID-19 lockdown, the bars say, "the use of remote hearings to deal with short or uncontroversial procedural business is unobjectionable, and indeed to be welcomed in many cases, even after the current crisis has passed."
But they continue: "However, we all take the view that careful consideration is needed before any decision is taken to employ remote hearings more widely, once COVID-19 is behind us. There are, in our mutual experience, multiple and multi-faceted disadvantages with such hearings, when compared to the usual, in-person hearings that have delivered justice for centuries."
Amongst the various factors the bars highlight are:
- judicial interaction is different and less satisfactory in remote hearings, making them less effective at isolating issues and allowing argument to be developed;
- management of witnesses, especially in cross-examination, is far less satisfactory when conducted remotely and "may have an adverse impact on the quality of the evidence given";
- remote hearings present "very considerable challenges to effective advocacy" in cases involving evidence or complex narrative submissions, and "deliver a markedly inferior experience";
- client protection and participation must be safeguarded, and a remote system "will only degrade the valuable human interaction that should be at the heart of meaningful and open access to justice";
- there are also wider concerns regarding the training experience, with the accompanying isolation of remote working having a negative impact on wellbeing.
While supportive of the continuing use of technology in our courts, and recognising that remote hearings will be vital in tackling accrued backlogs, the bars therefore conclude that "for any hearing that is potentially dispositive of all or part of a case, the default position should be 'in-person' hearings. Remote hearings should be available as an option in such cases where all parties (including the court) agree that proceeding in that way would be appropriate".