Last month HM Courts and Tribunals Service published their own research into user experiences of remote hearings: Evaluation of remote hearings during the COVID 19 pandemic. The report analyses responses to surveys conducted between May and October 2020 with public users of the justice system and in mid-2021 with professionals such as lawyers, judges and court staff.
This post looks at some of the key findings of this evaluation, considered in the context of earlier research on remote hearings.
Data on remote hearings
Unfortunately, published data on the usage of remote hearings during the covid pandemic continues to be decidedly patchy. About six months ago we published a post on statistics which had then recently been released by HM Courts and Tribunals Service about the number of hearings conducted remotely over the previous year: see Day to day data on remote hearings in the family courts
Those stats showed how many hearings in family and other courts had been conducted by audio, video or on paper, as opposed to physical in-person hearings. The published statistics began around April 2020 and went up to May 2021, and then for some reason they just … stopped. The web page where these statistics could be accessed (Weekly use of remote hearing technologies in HMCTS) simply announced:
“We stopped this monthly release of information to focus on our HMCTS monthly management information at a national level across jurisdictions.”
This might suggest that the same data would be available in the monthly management information, but that simply lists the number of cases of particular types received and disposed of in different courts over a given period, and tells us nothing about how the hearings were conducted.
Remote hearings are still being conducted, fresh travel and other restrictions have been introduced (despite voluble opposition in some quarters) and uncertainty over future variants, possible further lockdowns etc remains. So it seems rather premature to have given up collecting or publishing these statistics.
The user experience of remote hearings has been covered in a number of earlier reports, including:
- Two consultations, a rapid one in April and a follow-up in September 2020, by the Nuffield Family Justice Observatory (NFJO). This research was focused on remote hearings of the family courts. In support of this, the Transparency Project conducted its own user survey: Justice on the altar. We subsequently reviewed the results of the NFJO surveys here: Remote Hearings in the Family of Courts of England and Wales: what the research shows.
- Another rapid review, looking at the impact of COVID-19 on civil court users, was commissioned by the Civil Justice Council and conducted by the Legal Education Foundation (LEF) in May 2020, with its report published early in the following month: Civil Justice Council report on the impact of COVID-19 on civil court users published | Courts and Tribunals Judiciary. We commented on this here: Civil Justice Council report on the impact of COVID-19 on civil courts.
- In May 2020 the House of Lords Select Committee on the Constitution began its inquiry into the Constitutional implications of COVID-19 on the courts. We surveyed the evidence here: Has the revolution happened? Can we ever go back? And we covered its final report in April 2021: Covid-19 and the courts – The House of Lords Constitution Committee’s report.
The HMCTS evaluation
Now HMCTS has conducted its own research into user experiences of remote hearings, based on surveys and interviews conducted between May and October 2020 and in mid-2021. The report has been compiled by Janet Clark, Senior Evaluation Researcher (HMCTS). It accepts that over the quite long period to which the research relates “the remote hearings landscape was rapidly evolving” and that some of the issues identified earlier on in the period had been addressed by the time of later research.
The surveys were conducted with 4,808 public users, 1,140 judiciary, 2,022 lawyers and 358 court staff, and the in-depth interviews with 78 public users, 22 judges, 10 magistrates, 25 legal representatives, 25 court staff, 11 support professionals and intermediaries and 9 observers. The numbers are fairly substantial, but the distribution of respondents was not evenly spread across all hearings types or jurisdictions. The report explains: “In the public user survey, civil appeal hearings and immigration and asylum tribunals were omitted from the sample frame because of a shortage of available postal addresses for public users in these jurisdictions in HMCTS Management Information (MI).” This rather confirms the longstanding complaint about lack of adequate data – lack of data begets problems collecting and analysing other data.
HMCTS admit that they were not well prepared for the sudden transition to remote hearings. The official Video Hearings (VH) platform which was being developed as part of the courts reform programme was not at a stage where it could be used at scale, so Cloud Video Platform (an off-the-shelf video conferencing product) was introduced as a contingency measure – alongside other platforms such as Zoom, Skype for Business and Microsoft Teams, and BT MeetMe for audio – to meet the unexpected demand. Under normal circumstances, such a major change in practice would have been developed and tested first, probably in a series of pilots, before being rolled out piecemeal, as have other developments in the courts reform programme; but the urgency of the crisis made any such staged approach impossible. (As we’ve noted before, it was “all hands on deck”, with practitioners and the judiciary all mucking in to achieve whatever could be done to manage remote hearings to the best of everyone’s ability with the equipment available.)
Attending from home
Given that most people were being urged to work from home (WFH) during the pandemic, it is hardly surprising that one of the main findings of this evaluation should be that the majority of participants attended remote hearings from their own homes. The figure was greatest for public participants (79%), while 71% of legal representatives and 64% of judges attended hearings from home.
Most legal representatives (78%) said they preferred to work from home during the pandemic and 59% said they would still prefer to work from home after the pandemic, citing reduction in travel and waiting times among the benefits. However, judges were less positive about WFH: 58% felt that remote hearings impacted on their health and wellbeing, with increased fatigue being the most commonly reported problem, followed by increased stress, increased workload and fewer breaks. A smaller number of legal representatives (54%) also felt that remote hearings impacted on their health and wellbeing.
Court staff (who were classified as essential workers during the pandemic) were much less likely to be working from home: only 10% were found to be supporting remote hearings from their own homes, and the number reporting impact on their health and wellbeing was lower too, though far from negligible at 43%.
Working from home naturally required everyone to have suitable equipment. As previous surveys have found, this was often a problem for public users. Professional users were more likely to have the right equipment to manage remote hearing attendance, with multiple devices enabling access to e-bundles and the ability to communicate with clients. Public users were less likely to have access to a second device and might even be reliant on using a tablet or smartphone as their primary joining device.
Support staff reported that the most common issues for parties joining a hearing were that their camera or microphone were not set up correctly. Parties were generally expected to join the call thirty minutes before the hearing to provide an opportunity to resolve such issues but in reality they often did not do so until closer to the hearing start time, meaning there wasn’t enough time to investigate and resolve problems. Another common issue was problems with wifi, but “there was very little that court staff could do in such cases”.
A fifth of public users experienced problems with technology. Those that attended by video were more likely to experience technical issues than those that attended by audio (30% compared with 15%). The main issues for all user groups were inconsistent audio quality and people being disconnected. “Connection dropping out or freezing” was the most frequently reported major problem, as reported by 44% of judicial respondents, 35% of HMCTS staff and 16% of legal representatives.
For professional users, training was provided but this was not universal. While 62% of judicial respondents and 57% of HMCTS staff recalled receiving training and guidance, only 42% of legal representatives did so. Among public users attending a remote hearing, 80% recalled receiving guidance on how to participate, and 87% found it easy to follow. Those who encountered technical issues were less likely to have had the pre-hearing guidance.
Location and communication issues
An issue for many public users was finding a suitable location, especially if living in environments with shared facilities and few rooms. This may be why 3% of public users were recorded as having attended from someone else’s home. In some cases judges recalled having to ask public users to move their camera so that the judge could see around the room to check that they were alone. There was evidence of some public users joining the hearing from inappropriate locations “such as parks, walking down a street, driving up a motorway, in a public phone box and on a plane”. In such cases it was necessary to adjourn the hearing. Public users joining from a car was another reported scenario “which may be due to their home situation not being suitable”.
Court staff also felt that whilst it was possible to replicate the principles of the court environment in a remote hearing, it was not possible to replicate the “ceremony and grandeur” and “as a result some of the gravitas of the court is lost”. They pointed to the fact that in remote hearings the court no longer “rises”, and that parties are unlikely to wear formal court attire. Nevertheless, 62% of court staff and 69% of lawyers thought remote hearings were generally effective at creating a comparable environment to in-person hearings. Judges were less positive on this: while 51% of judicial respondents to the survey thought remote hearings were effective at creating a comparable environment to in-person hearings, a substantial number (37%) thought they were not. Most public users – 84% of those who attended by video and 79% who attended by audio – felt their hearing had been appropriately formal. And if the atmosphere was less formal, that had its benefits too: many public users felt being in their own home helped them to feel safer, less anxious, and more comfortable during their hearing.
Legal representatives commented that when they were not co-located with clients it was much harder to communicate with and take instructions from them, harder to judge if a client was upset and harder to manage situations where the client was talking too much or behaving inappropriately.
Another very common communication problem was with the use of interpreters: 70% of judicial respondents, 64% of HMCTS staff and 47% of the legal representatives who had participated in remote hearings involving interpreters said there were difficulties due to the hearing being remote. The most common problems were the interpreter or signer not being visible to their client, not being audible or using the phone.
Type of hearing
The likelihood of attending a remote hearing was heavily influenced by jurisdiction, with most criminal court users attending in person (87% in Crown court, 91% in magistrates’ courts) while most family court users (86%) attended remotely.
The most important factor for judges when deciding whether to hold a hearing remotely was the perceived vulnerability of parties. Other factors included the length and complexity of the hearing, the seriousness of the case, the stated preference of public participants and health considerations. In considering the length of the hearing, it may be significant that 64% of judges thought remote hearings were “typically longer than in-person hearings”. Most legal representatives, on the other hand, thought remote hearings were either the same length (35%) or shorter (37%) than the equivalent in-person hearings. This difference of perception may help explain the relative lack of enthusiasm for remote hearings among the judiciary as compared to practitioners.
Type of platform
Among both public and professional users the most commonly used platform for video hearings was CVP and for audio hearings BT MeetMe. Whilst CVP was most commonly used across all jurisdictions, BT MeetMe and Teams were much more widely used in civil and family courts than other jurisdictions.
Among public users, however, remote hearings were mostly accessed by audio (68%) rather than video (only 32%). Those taking part in audio hearings did so mostly (80%) by telephone rather than using a platform such as BT MeetMe.
Types of public user
Public users who took part in remote hearings were more likely to be litigants in-person: 65% compared with 34% of those who attended hearings in-person. An even higher proportion of those that attended by audio (74%) were litigants in-person.
Among those that attended by video, around half (53%) had legal representation. Public users were less likely to represent themselves at remote hearings in crown court (17%) and magistrates court (36%) compared to other jurisdictions, where the proportion was between 53% and 89%.
In terms of jurisdiction, public users were most likely to participate remotely in hearings in the Social Security and Child Support (SSCS) Tribunal (96%), in the family courts (86%) and in the employment tribunal (78%) and least likely in the Crown Court (13%) and magistrates’ court (9%).
This is obviously for us at the Transparency Project a critical matter. We have commented in a number of earlier posts about the problems of public and media attendance at remote hearings for the purpose of reporting, observation and research. The HMCTS evaluation included a category of user which it described as “observers”, which included both “family/friends of public users” and what defined as “professional observers” meaning “journalists, academics and third sector professionals”. In all they interviewed three journalists and two academic or third sector professionals. In reporting their responses, it substantially confirms what we have said in our earlier posts:
“Professional observers, such as reporters and academics, reported difficulties with accessing remote hearings in the early stages of the pandemic. They reported that remote hearings were poorly publicised, that there were inaccuracies with listing information, where available, and court staff were unclear on whether observers were permitted to attend. However, it was widely felt that access for professional observers had improved as time went on. This was attributed to improvements in the availability and accuracy of listing information and due to court staff having a better understanding of remote hearing processes.”
The report doesn’t go into further detail but for clarity we would point out that “listing information” should be understood to include not just information about the case, and where and where it is being heard, but also details on how to attend it remotely, eg by contacting court staff (email address), accessing a streaming link (URL), etc. In a case of particular public interest, the report notes, the court may receive “a very large number of public access requests from observers”, and this can lead to logistical problems for court staff.
An obvious problem for observers, which is not confined to remote hearings, is access to case papers. However, this is something where technology could so very easily provide a solution (ie controlled access to the electronic documentation) that we think it quite strange that so little consideration appears to have been given to the idea. Perhaps if the VH platform is going to be further developed, this should be considered as part of its development.
Obstacles to public observation of remote hearings may also have been compounded by legislative changes introduced under the Coronavirus Act 2020 that appeared to suggest the principle of open justice could be satisfied simply by providing access to accredited media representatives. This is not the case and we are glad to see this acknowledged by the inclusion of interviews with academic and third sector professionals under the category of public observer in the evaluation.
However, one thing the evaluation does not cover in relation to magistrates’ courts is that aspect of remote – indeed secret – hearing known as the Single Justice Procedure (SJP). This can mean a single magistrate working on a computer from home can dispose of criminal matters (including breaches of the Coronavirus Regulations carrying substantial fines) where the defendant has either pleaded guilty or failed to respond to a plea, and although the results are published it is much harder for media reporters to maintain proper public scrutiny of the justice system. For more on this, see Transform Justice, Computer says yes – you will pay a fine and get a criminal record and Evening Standard, London’s Covid-19 rule breakers fined over £1m in closed-door courts.
Finally under this head, as the number of in-person or hybrid hearings increases, we should note that there have also been reports of court rooms being barred to public or professional observers on the grounds of social distancing restrictions or a need to establish some form of accreditation or participator status, which is entirely contrary to the very notion of open justice.
We have commented on this and other aspects of open justice during the pandemic in an article in the Journal of Media Law, Remote trial and error: how COVID-19 changed public access to court proceedings.
See also, on the HMCTS evaluation more generally: Local Government Lawyer, Remote hearings research highlights wellbeing concerns for judiciary, legal representatives and HMCTS staff
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