How things have changed following the emergence of the Coronavirus pandemic…In all walks of life, we have had to adapt to different ways of working and living.
For many years before the pandemic, I complained that the requirement to sit around in a courtroom for hours at a time waiting for only one or two cases to call for a short, procedural hearing was not a good use of my time, or a good use of my clients’ precious resources. Now, of course, a crowded court room has other challenges, but even without the worry of spreading a virus, it seemed to me that a system that enabled short, routine hearings to be conducted remotely from your desk, via a video screen, made absolute sense, not just for me, but for judges as well. Yet it wasn’t until the social-distancing restrictions imposed on us during the pandemic that steps were taken to make this a reality, and court practitioners quickly had to accustom themselves to a new approach to court hearings.
Despite the end to social-distancing, this arrangement continues, and civil court lawyers have the ability to remain at their desks, continue working, and then deal with procedural hearings remotely, instead of trekking down to court and spending the morning there for a small number of short hearings. In addition, in many cases, hearings are now not necessary. If there is an agreed position and the court is advised early enough, matters can be dealt with administratively, thereby saving the client money, and freeing the lawyer for other business. So far so good.
Necessarily, these remote video hearings were extended to include more substantive hearings during the pandemic. Child welfare hearings (which require the presence of the parties as well the solicitors) were conducted online via video link. Civil trials, requiring the leading of evidence from parties and their witnesses, were also dealt with in this way. It was a steep learning curve for lawyers in terms of how to coordinate and manage these more involved hearings. Conducting hearings remotely online can present technical and practical challenges. Yet these hearings were a means to enable the court business to continue, and to enable justice to be served, despite the restrictions created by lockdowns.
Now that the social distancing restrictions have all but ended, one might have expected the court to revert to the traditional “in person” approach to child welfare and evidential hearings. On the face of it, it has – the “default position” is that such hearings should be conducted in person. But it remains an option to the court to conduct such hearings via video link, if good reason for it is offered. Anecdotal evidence and experience suggest that many agents and some sheriffs have their bias about the efficacy of hearings conducted online, with many preferring it. The convenience to the agents, parties, and perhaps to the sheriff as well, seems to be the deciding factor when assessing the need for an online hearing. Is this at the expense of justice being exercised?
On one view, the authority of the court, and perhaps the gravity of issues it requires to resolve, is lost, or at least diluted, if the hearing is not conducted in person. In child welfare hearings, the ability of the sheriff to address the parties directly can be very useful in terms of ironing out problems that are getting in the way of a solution. Looking someone in the eye can help to get your message across, and the virtual nature of online hearings prevents that. So, might an online hearing have a poorer prospect of getting a problem solved?
When it comes to evidence, many assumed that judges would struggle to assess the credibility and reliability of witnesses in a virtual court, if they could not observe the person and their demeanour “in the flesh”. The remote nature of testifying in this way may create a barrier to truthful evidence. Is it easier for a witness to get away with misleading the court if they are not in a courtroom, in person? Different sheriffs take a different view on this, and some have happily commented that they see no difficulty with this task if the witness is not giving evidence in person. And yet there remain sheriffs and judges who prefer to see a witness and “the colour of their eyes”. If there is a dilemma as to what is best, surely using the tried and tested approach of having the witness in court, in person, makes sense?
And yet, what of the honest witness, who is simply in court to give the best recollection that they can of facts relative to the dispute? If that witness is giving evidence in a less formal setting, at home, or perhaps in the lawyer’s office, in front of a screen – as opposed to being the focus of the eyes of lawyers, clerks and clients while in the witness box – will they be more relaxed, more open and therefore more able to give better evidence to assist the court in its fact-finding task?
There are so many other questions that this topic throws up. For example – is it really appropriate for someone to be giving evidence from their kitchen? If remote evidence must be led from the witness in a lawyer’s office, why not then in court? I could go on.
Above all, a court’s ability to serve justice effectively and efficiently is key. The experience of the last few years shows that flexibility in approach is possible to achieve that. As long as courts and practitioners are in tune to the pros and cons of the various options, and remain focused on the ambition of reliable access to substantial justice, perhaps the court system can use all the tools in its toolbox, become more user-friendly, and thereby demystified, in the process.
If you require any advice, please contact a member of the Blackadders Family Law Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.