We have heard a lot about how the courts are responding to the coronavirus pandemic by conducting hearings online instead of in a physical court room. But while hearings by Skype and Zoom enable participants to maintain social distancing and avoid the risks of contagion, they may not work for everyone. Is there another way of delivering justice to the digitally excluded?

Remote hearings have all too suddenly become “the new normal”.  For many, they are a convenient and economic alternative to going to a physical court. But for others they are a barrier to justice. We have already seen how the cosy familiarity of video conference hearings can detract from the respectful formality of a traditional court hearing, leaving lay participants feeling marginalised, as typified in a case described on this blog by Celia Kitzinger. Judges themselves have reported problems with

“participants not respecting the reality that although they were not physically present in a court room, they were taking part in court proceedings with all the constraints on behaviour that implies. There have been instances of judges being shouted at by litigants.”

The latest communication from the heads of the judiciary says “Every hearing we conduct in whatever form must provide a fair hearing.”

Digital exclusion

But what about those litigants and lay participants who don’t even have access to the internet, or who are simply not “up to speed” with the relevant technology? To participate in an online video hearing, for example, it’s not just a question of having a phone number to dial in on. You may need to install software on your computer or download an app to your tablet or phone. You may not even have such a hi-tech device. What if you only have a landline phone?

These are problems which could have been and were being solved before the advent of social distancing and the lockdown. HMCTS, which manages the courts, was in the process of developing more and more digital and online services in support of justice. To help those described as “digitally excluded”, in 2017 they teamed up with the Good Things Foundation in a pilot scheme to provide one-to-one support in various local law centres.

This “face-to-face Assisted Digital support for people who would otherwise be excluded from accessing these services” was all very well before the lockdown, but it is impossible to provide such assistance now and HMCTS have confirmed that that aspect of the pilot is on hold. We understand that they are currently looking at how they might provide help help by remote means instead. The same problem is faced by other organisations providing support for those going to court, such as the Citizens Advice Bureau, and Support Through Court (formerly the Personal Support Unit) both of whom operate in or near court buildings and can provide moral support and practical guidance (though not legal advice) to litigants in person and witnesses. Support Through Court has had to close all its offices, though it continues to run a helpline.

HMCTS has some advice for those joining a remote hearing, but the advice is provided online and assumes sufficient know-how to download software and log in to a meeting: see How to join telephone and video hearings during coronavirus (COVID-19) outbreak. For those who need assistance, there is a contact number in the hearing notice. So, assuming they get the hearing notice by post, a person who needs digital assistance will be able to contact someone about how to go online without first having to go online to find out how to do so. We understand that calling this number might result in the judge being asked to change the channel (from video to telephone, for example) or the litigant being directed to a helpline to obtain technical support for the video hearing. (We have invited HMCTS to comment further on this and will update this post if we get a response.)

A number of courts will remain open during the coronavirus epidemic, to provide “essential face-to-face hearings”. Those courts will be managed in the most socially-distanced way possible. According to HMCTS guidance, that means keeping empty seats between people, only allowing a limited number into a smaller space such as a toilet or waiting room, and making people queue two metres apart to get in through security.

Keeping justice on the road

Some imaginative approaches to socially distance litigation have been adopted in other jurisdictions. While remote hearings have generally been the norm, as a way of coping with coronavirus, as the newly launched website Remote Courts Worldwide demonstrates, we have news of some American judges taking a different approach.

For example, a judge in Salt Lake City, Utah is “serving up justice food-truck style” on the kerbside from a converted motor-home now known as “Courtroom 6”, parked outside the main court building. Deseret News reports how “the mobile courtroom allows defendants to keep about 6 feet from a judge and a judicial assistant inside, while a prosecutor appears over laptop video and a defense attorney tunes in by phone”.  Defendants are told to wait in their car until their case is called on.

Presiding Judge Clemens Landau explained that “we need a way to interface with people who need something from us — and that’s defendants and victims — without bringing them into a closed environment where they come in close contact with our staff”. The article notes that the idea was one of a number proposed by court staff, another of which had been the idea of a judge in a drive-through booth. So far as we know, that hasn’t been tried yet. But as Judge Landau put it: “We’re just flying by the seat of our pants.”

Given the central place of the automobile in American cultural life, it is perhaps no surprise that a judge in another state has had a similar idea. In Kingston, Tennessee, Judge Mike Pemberton has set up court in a parking lot. As he explained in a press release,

“Thus far, the [Tennessee] Supreme Court has encouraged judges to handle as much as possible by teleconference and video-conference. We are doing that. However, not everyone has access to the internet. In fact, where I live in Roane County there is no internet or cable TV for that matter. Therefore, the use of video-conferencing has its limits.

The Supreme Court also permits judges to hear certain types of cases in their chambers. These include such things as agreed adoptions, agreed divorces, settlements of cases involving minor children and workers compensation settlements. Because of the closure of the courthouses, it is difficult to handle such matters in chambers inside the courthouse.

Therefore, this morning I began hearing these types of cases permitted by the Supreme Court in the parking lot outside my office…”

He has set up a protocol for such cases. Each is allotted 20 minutes. “Everyone should stay in their car until told to get out.” Some cases can be handled without the person even getting out of their car, the judge just speaks to them there; but if anyone does need to get out of their car, they must remain at least 6 feet away from anyone else. He also makes clear that his “parking lot court” will not be used for any contested matters.

Could it happen here?

Though it might add a new dimension to the idea of “going on circuit”, in reality the idea of English courts adopting the same approach seems doubtful. Having been told about these innovations in the land of the gavel, retired family judge Clifford Bellamy was more amused than inspired.

“I have read the piece by Judge Pemberton. I hope you will not be offended if I say that I am still laughing! His proposal would undoubtedly lead to transparency – though I don’t think it is the type of transparency that even transparency supporters like me would consider appropriate.”

In his book The ‘Secret’ Family Court: Fact or Fiction?, Bellamy quotes a remark by another family judge, Sir Mark Hedley, observing how in Roman times transparency was achieved by building courts with no walls. But Bellamy would draw the line at holding court in a car park.

“I can see that hearings in a parking lot would be entirely suitable to the kind of hearings conducted by Judge Judy and Judge Rinder but for my own part I cannot conceive of any area of family law in which such hearings could possibly have any role to play. I note the very limited use being suggested by Judge Pemberton, but even hearings where the outcome has been agreed and all that is required is the judge’s approval of a draft order prepared by the advocate, there will still be some advocacy (especially if one party is a litigant in person), the parties may still be seen by passers-by (in Derby, for example, the public can see into the judges’ car park), photographs could be taken by the public. I could go on!”

He adds:

“There is, of course, a very serious point here. It is all very well holding some hearings by Skype for Business, Zoom, FaceTime and so on, but as Judge Pemberton says, not everyone has access to that technology – a particular problem for some litigants in person.”

While the lockdown may seem a temporary condition, the increased use of remote hearings is likely to outlast this emergency, not least because they were always envisaged as part of the way the courts were being developed. We should be wary, however, of simply accepting them as “the new normal”. The President of the Family Division has launched a two-week review of how remote access is working in practice. And when it’s all over, and things get back to the old normal, to quote what Bellamy said in a recent letter to The Times (2 April 2020),

“the experiment of remote working should cease until there has been proper consultation and evaluation of the effects on those who are most vulnerable, and have the most to lose — the children and families the system exists to serve.”

We take this opportunity to remind you – parents and family members who have been involved in a remote hearing since covid-19 broke out – please fill in our survey so we can find out what works and what doesn’t.

We have a small favour to ask! 

The Transparency Project is a registered charity in England & Wales run largely by volunteers who also have full-time jobs. We’re working hard to secure extra funding so that we can keep making family justice clearer for all who use the court and work within it.

We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page.

Thanks for reading!

Featured image: Photo by yang miao on Unsplash