UPDATE 24 JULY: This post has been amended to further clarify the position in the Court of Protection.
From today, Tuesday 28 June 2022, courts will have new powers to allow journalists and members of the public to observe hearings remotely. While many judges will now have experience of people attending hearings remotely due to measures taken because of the COVID-19 pandemic, senior judges have issued Practice Guidance to help them understand and apply the new law.
The new law allows courts to allow remote observation of hearings even where the hearing itself is taking place in a courtroom with all the participants present. Although remote observation has become quite common during the Covid pandemic, this was usually only possible where someone else was already attending remotely. Most courts have been able and willing to facilitate some level of remote observation, albeit with some hiccups arising from late or hidden lists or an inability to respond to requests in time, but in some jurisdictions, notably the Coroner’s Court, there was a particular problem in observers being able to gain access to hearings even during the pandemic when travel wasn’t possible.
Does it apply in the family court?
Yes. The guidance says :
The power can be exercised in “proceedings of any type” that are (a) in public or (b) not open to the general public but “specific categories of person, or specific individuals, who are not taking part in the proceedings are entitled to be present by virtue of provision made by or under any enactment or of being authorised by the court.” The second category would include youth court proceedings, family proceedings to which the media or researchers are admitted under FPR 27.11(2), and other hearings in private, where the court has allowed a non-participant to attend.
Can the court refuse to allow observers?
This doesn’t mean that just anyone can observe a hearing. But it does mean that those who are already allowed to observe can do so remotely. If appropriate, observers can be excluded, just as before. For example, in some cases it is necessary to exclude the media for part of a hearing where particularly sensitive evidence is given, and that can still happen.
The guidance makes a small error in that it refers to researchers, without mentioning ‘legal bloggers’, who are also covered by FPR 27.11(2), whilst researchers as a general category actually aren’t. FPR 27.11(2) actually permits access to hearings to a range of individuals, including ‘a duly authorised lawyer attending for journalistic, research or public legal educational purposes’ (i.e. ‘legal bloggers’). Researchers may well be given permission to attend a hearing, but unless they are a ‘duly authorised lawyer’ researcher they will have to ask for permission under FPR 27.11(2)(g) as ‘any other person whom the court permits to be present’.
Before making a direction allowing remote observation the court must be satisfied that –
(a) it would be in the interests of justice to make it; and
(b) there is capacity and technological capability to enable transmission and giving effect to the direction would not create an unreasonable administrative burden.
There is now a useful checklist of things that the court HAS to consider, which will apply to this sort of decision, and which will probably be useful for those who are applying to observe to work from. They are:
- the court must take into account the need for open justice;
- the timing of any access request and its impact on the business of the court;
- the extent to which the resources necessary for effective remote observation are or can be made available;
- any statutory limitation on those entitled to observe;
- any issues that might flow from observation by people outside the UK; and
- any impact which the making or withholding of such a direction, or its terms, might have upon
- (i) the content and quality of the evidence;
- (ii) public understanding;
- (iii) the ability of the media and public to observe and scrutinise; and
- (iv) the safety and right to privacy of any person involved with the proceedings.
Will anything else change?
Yes, one quite significant change is that those who want to watch or listen to a hearing must now identify themselves to the court by providing their full name and email address beforehand, unless the court says this is not necessary.
They must also conduct themselves appropriately and in accordance with the court’s directions during the transmission (but although the guidance suggests this is a new provision, it doesn’t really represent a change in practice).
As the terms under which legal bloggers attend family court in effect require them to identify themselves because they have to provide their qualifications as credentials, usually by email, this doesn’t really represent any change. Similarly, media representatives can be required to produce their press card before being able to access family court hearings, so this is not a major change for those observing family court hearings.
In terms of public court hearings though, it is currently the position that anyone at all can walk into court and sit at the back without identifying themselves, let alone leaving behind contact details, and so on another level this does represent a change in practice. Practically speaking, nobody can be sent a link to even a public hearing without a working email address, so perhaps this is not something to get too worked up about. Indeed, the guidance says that:
Where the proceedings are only open to certain categories of person the direction must contain provision for them to demonstrate their right to attend and it must prohibit observation by those who are not authorised.
which is no more than what happens now anyway.
What is new is the implicit possibility that observation might not be permitted where requests are made late:
Conditions could, where appropriate, include deadlines by which to apply for access, restrictions on the numbers given access, or enhanced requirements for identification to enable the court to be confident that a person seeking remote access will not risk impeding or prejudicing the administration of justice
This sounds sensible, but because court lists are rarely published earlier than 2pm on the day before the hearing (giving only 2 working hours before the end of the working day), and because court staff are very busy and thin on the ground, and because court lists often provide generic inbox contact details (sometimes the wrong inbox), it is not always possible for would-be observers to give much, if any, advance notice. In the case of ‘volunteer’ observers, they may well not be able to give advance notice for other reasons, because their decision to try and observe will be fitted around their own personal and professional commitments.
That backdrop makes the expanded guidance on the issue of timing somewhat tricky for legal bloggers and CoP observers to navigate:
Timing and impact on the business of the court must be considered. Media applications and others that are timely and uncontroversial may pose no difficulty. On occasion, however, applications may be late, or numerous, or raise complex issues. Judicial office holders might properly guillotine the process, limit the numbers given access, or decline to deal with an application if they would otherwise be disabled or impeded from administering justice in the case itself, or diverted from other pressing judicial duties.
One other point of note is the welcome confirmation that decisions about attendance are for judges, not court staff, to make. Occasionally, HMCTS staff get their wires crossed about this.
The guidance also makes clear, quite rightly, that whilst the Open Justice Principle is to be given due weight in all types of case, the court’s first job and top priority must be to do justice in the case itself. There are a lot of references to available resources as a limiting factor, and we hope that the constraints on HMCTS staffing will not end up resulting in judges routinely deciding that requests for observers to join hearings remotely are too burdensome.
HMCTS really must ensure that these important provisions are facilitated and able to come off the page, wherever possible.
You can read the Guidance for judges on the Judiciary website here.
The new rules are brought into force by The Police, Crime, Sentencing and Courts Act 2022 (Commencement No. 2) Regulations 2022 which, in conjunction with the Police, Crime, Sentencing and Courts Act 2022 ss 198-201 creates a new Part 7ZA to the Courts Act 2003 (See here). Also see the Remote Observation and Recording (Courts and Tribunals) Regulations 2022, which bring into force the ‘matters that the court must take into account’ that we’ve set out above and which are discussed in the guidance. This is quite a complicated regulatory framework so it is really useful to have the guidance to draw it all together in one place.
The Court of Protection
It is likely that the Remote Hearings Guidance issued by the Vice-President, Hayden J, in March 2020 will be updated in due course to address the provisions of this new framework, not least as the provisions of the template order attached to that guidance now require updating to reflect that there is no need now to injunct observers from making unauthorised recordings, as this is covered by the offence under Courts Act s85B.
It should be noted that, in the Court of Protection, this new framework alongside, rather than replacing, the provisions of the Transparency Practice Direction. The Transparency PD provides the mechanism by which the court decides whether the matter should be held in public, and subject to what limitations as to identification of P. The new framework (and guidance) provides the mechanism by which non-participants may be given remote access to the hearing, whether that hearing is being held in person or online/by telephone.
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