This is a guest post by Celia Kitzinger, co-director of the Coma and Disorders of Consciousness Research Centre and Honorary Professor, Cardiff University School of Law and Politics. She tweets as @KitzingerCelia

During the current public health emergency, remote justice – hearings conducted wholly via audio/visual conferencing platforms – is the default position for all court cases.  After early enthusiasm at the fact that the courts were able to acquire the technical skills and software to actually deliver remote hearings at all, there has been increasing concern about their efficacy, fairness and transparency and – in particular – about the loss of human connection and personal engagement they can entail, as described in these accounts from a judge, a journalist, and a lawyer).  There has been less feedback from lay participants involved in remote justice, either as parties, or as observing members of the public.

A few weeks ago I blogged about a family member’s experience of remote justice in the Court of Protection (here).   That case was heard just as the restrictions associated with the pandemic were beginning to take effect: it was the first all-Skype hearing, arranged at very short notice.  I supported a family member through a three-day hearing concerning life-sustaining treatment for her father and we both found it a brutal experience – not only because of the question to be decided, which would be emotionally challenging in any circumstances, but also because the technology that replaced the face-to-face courtroom introduced additional stresses and communication barriers and seemed, in particular, to rob the occasion of its dignity and gravitas and to result in a marked lack of empathy from both judges and lawyers throughout this hearing.  For the family member who was a party to the case, “it didn’t feel like justice”.

But I also expressed my view that remote justice could work, in principle, and that it has the potential to make justice more streamlined, efficient, accessible and inclusive.  So, since then I’ve been on the look-out for another remote Court of Protection hearing that I might be able to attend as a member of the public.

Three goals for this post

On 1 May 2020, I attended an open hearing in the Court of Protection before Mr Justice Hayden.  It worked almost seamlessly.  I describe my experience of it here with three goals:

  • to outline what a ‘day in court’ is like, from the point of view of a public observer attending via remote technology;
  • to convey my experience that technology need not be a barrier to a judge behaving with humanity, showing his respect for, and empathy with, the people at the centre of the case;
  • to contribute to the discussion of ‘transparency’ and access to the courts for members of the public.

Identifying the hearing and getting access

The hearing I attended concerned “D”, an 18-year-old with autism and a range of disabilities, who had been identified as highly susceptible to financial and sexual exploitation.  She had been the subject of an urgent application a week earlier, on 24 April, heard by Mr Justice Moor, which led to protective orders made on that day.  (I haven’t been able to find the judgment in BAILII). For the last week, D had been deprived of her liberty in a supported living facility and part of the Local Authority’s application was to ask the Court to determine whether the situation should continue.

D was deemed not to have legal capacity and was not represented at the hearing, apparently because the Official Solicitor was not in a position to act as litigation friend for at least a month.  I don’t know if anyone else was available, or had been approached, for this role.  At this hearing, Mr Justice Hayden was absolutely clear that no substantive decisions could be made so long as D was unrepresented.  A full hearing has subsequently been scheduled for 15 June 2020.

I had no idea what this hearing was about when I asked for access.  I’d been looking for hearings to attend for the previous three days but relatively few were listed as open to the public, and the two or three that were happened to be at times I couldn’t attend. The day before this hearing I’d obtained permission to attend one, and logged on all ready to begin, only to be told “His Lordship is having difficulty with his computer, so there will be a delay” – and after waiting for an hour I gave up. The hearing I did manage to attend on 1 May was in the listings with only the name of the judge (Hayden), the date and time of the hearing, a reference number with initials, the words “Remote Hearing” and (in capitals) “FOR HEARING IN OPEN COURT”. Without more information, deciding which cases are worth attending is very hit and miss and only someone determined to attend a remote hearing, any remote hearing, would be likely to bother.  It would be incredibly helpful to have some kind of indication of what cases are about (e.g. “DOLS”, “capacity assessments”, “contraception” etc).  Since I wanted to see whether a remote hearing could be a better experience than the one I had already been involved in, I decided to go ahead and hope for the best.

Gaining access was straightforward.  I emailed the judge’s clerk shortly after 5pm the day before and received a reply before 9.30 the next morning inviting me to attend the hearing via Skype for Business.  The hearing itself was scheduled for 10.30am (and as it turned out, it lasted for about 45 minutes).

Logging on was unproblematic.  I arrived in virtual court punctually and found the others already online. For about 5 minutes at the beginning of the video-call, but before the formal beginning of the hearing (and before the judge appeared), we all said ‘hello’, identified ourselves via video-link, and checked our equipment was functioning.  Only the self-described “technophobic” solicitor for the Local Authority failed to get her video working – and as she pointed out, since she was not a speaking participant in the proceedings this was not really a problem.  Those of us present as observers (myself, the judge’s clerk, and a Press Association journalist) then turned off our cameras, leaving two people – counsel for the Local Authority and D’s social worker – visible on screen.  Unlike my previous experience, the backdrops were all blandly appropriate to the occasion and there were no intrusive pets.  The audio quality was good throughout – but with a slight time-lag leading to inevitable interruptions, although I don’t think these significantly affected the conduct of the proceedings. 

The hearing itself

When the judge joined us (with shelves of learned-looking books as his backdrop) his clerk made a formal announcement that this was a remote hearing at the Royal Courts of Justice, that we should all be in a private or quiet area where we cannot be overheard, and that although it was being recorded by the court, we must not make any private recording.  I think we were all compliant, but we weren’t actually asked to confirm that this was so.  Despite my presence, and that of a Press Association journalist, nothing was said about any reporting restrictions at any point. I asked the clerk to notify me about the restrictions after the end of the hearing just before I logged off, and followed this up with counsel for the Local Authority over the weekend, but have not been able to obtain the Reporting Restrictions Order.  An emailed request to the judge’s clerk provided reassurance to go ahead and publish, but I am feeling a certain anxiety (as I think most people would) about reporting on a case when the court is unable even to provide the text of the RRO, let alone the sealed copy.  The Transparency Project and I have had to make a judgment call, and work on the basis that if any order extended beyond the usual non-identification by name I would have been told.

As the hearing began, I learnt for the first time what the case was about and the order that the Local Authority was asking the judge to make.  For an observer without access to the position statements, or any background to the case, it has to be pieced together on the hoof over the course of the hearing.  That’s pretty frustrating!  Fortunately, Mr Justice Hayden gave a helpful summary in his closing remarks which (finally) provided some of the context to what I’d been listening to.  He said that D had faced “a raft of challenges”, listing her autism, attention deficit disorder, anxiety, depression and some physical disabilities. She struggles with interpersonal relationships and sometimes with language.  She has poor attention and concentration and no concept of how to manage her money. She is “highly susceptible to financial and sexual exploitation” and has been “desperately exploited sexually”.  Although she was provided with supported living accommodation, she chose not to make use of it and had been living with a man who was “not supportive or nurturing”.  On 10 April, in the middle of lock-down, that relationship had broken down and he told her to leave, initiating the events that led to the hearing before Mr Justice Moor a week earlier.

When told she must leave the home she’d been living in, D went back to her supported living placement, but only for a couple of nights.  Then she left again.  She called the police the next day and told them she’d spent the night in a tent with a homeless man.  It was assumed there had been sexual relations.  I learnt that D already has a child who was placed with a view to adoption earlier this year after D’s mother found looking after her grandchild too much to cope with.  Since then, D has been receiving the injectable contraceptive, Depo-Provera, via 3-monthly injections, with the next due in July. She’s been indicating that she may not want to have this injection.  It’s not clear whether or not she has capacity to consent to, or to refuse, it. This was another issue for the Local Authority to establish before the hearing on 19 June – and if D does not have capacity to make her own decisions about contraception, the Local Authority may ask the court to make an order.

After her call to the police, attempts were made to contact D and she disclosed that she was staying with a friend who was displaying symptoms of corona virus and had been advised to self-isolate.  Her social worker had become very worried about her and was concerned that she may lack capacity to make decisions in relation to residence, sex, and medical treatment.  That led directly to the urgent application heard by Mr Justice Moor on 24 April, and so to D’s detention in supported living accommodation.

In addition to addressing the question of where D should live, what she does and doesn’t have capacity to make her own decisions about, and whether the court should make an order regarding contraception, the Local Authority barrister asked for guidance on an issue concerning s.4B of the Mental Capacity Act – and referred the judge to a paragraph of his position statement (which of course I did not have).  The judge, pointing to the need to “confront the challenges of transparency” (which I understood to mean that it was necessary to assist me and the journalist, who had no access to the document, to follow the argument) helpfully asked him to summarise this part of his position statement.  It was hard to follow for a non-specialist in this area and without the written text. The gist of it is that the Local Authority would like guidance as to whether it is actually necessary to apply to court in order to deprive a person of their liberty in an ‘emergency’ situation, such as that posed by COVID-19.  D had been in contact with someone with (possible) COVID-19 and she was thought not to be self-isolating at the time that Mr Justice Moor made his order. 

Counsel for the Local Authority was questioning whether it is really always necessary to make a court application before taking the step of detaining someone in this sort of situation.  He referenced the amended Act (which is not yet law), which includes reference to ‘emergency’ deprivation of liberty, and argued that the Local Authority is entitled to rely on s.4B to deprive someone of their liberty in the circumstances of this case on the condition that they simultaneously or shortly thereafter make an application to the court.  There was some preliminary discussion of this point during which the judge stated that he “could fully understand” why Local Authorities would want guidance on this issue but that (a) it is not relevant to this particular case as it currently stands; and (b) that he cannot make any such decision “while there is no one here to represent D and present the counter-argument”.  He did however make clear that “I will look at this matter at the next hearing”, adding: “In these difficult times, civil liberties are just as important as they always are and should not be lightly circumscribed.”

Reflections on the hearing and the use of remote processes

I wrote in my previous blog about the “marked lack of empathy” displayed by judges and lawyers in the remote court, and contrasted this with my experience of face-to-face hearings.  My observation of this remote hearing has caused me to reflect further on the extent to which “lack of empathy’ is due to the medium through which the hearing is conducted, and how much can be attributed instead to different judicial styles and practices, irrespective of the medium.  Although neither D nor any family member was present, Mr Justice Hayden’s concern with the person at the centre of the case was always at the forefront of his interventions.  He interrupted the opening submission from counsel for the Local Authority to ask the social worker how D was and “what has actually happened since Moor’s order?”  He seemed pleased to learn from her response (based on phone and texting contact with D) that D was “doing well”, had “not tried to escape”, and that she “goes out into the garden and does colouring-in, and talks to staff about everyday life things”.  He asked the social worker to pass on a message from him to D:

Can you explain to her that, because the Official Solicitor is not yet instructed on her behalf, it was necessary to adjourn this hearing. And tell her I have been enormously impressed by her reaction to the court’s intervention and I’m glad to know she’s keeping safe.”

This was of course a much simpler and shorter hearing than the one I blogged about previously (here).  I agree with the barrister representing the Local Authority in this case, who said:

The hearing went well, but it was in many ways the ideal circumstances for a remote hearing: there was only one counsel, all those dialling in were professionals, and neither P nor any family members were in attendance and most of what needed to be communicated had already been shared in writing before the hearing.”  (Josh Hitchens, email 1 May 2020, quoted with permission)

It may be that some cases, such as the one I wrote about earlier, should really be done face-to-face: there has since been a decision by the President of the Family Division and Head of Family Justice to the effect that a case that came before him was “unsuitable for a remote hearing”.  In the hearing concerning D, by contrast, I cannot think of anything that could have been gained by a (necessarily delayed) in-person hearing.  The technology worked smoothly and the business before the court was accomplished in a timely and efficient manner.  It would seem wasteful of time and resources to demand that it should have happened face-to-face.

The continuing importance of Open Justice

Transparency should not be a casualty of the move from face-to-face courts to remote hearings – and I have been disturbed to find how few Court of Protection hearings are listed as being “for hearing in open court”.  This may be in part due to the new Guidance  (31 March 2020) from the Vice-President of the Court of Protection (Mr Justice Hayden).  This Guidance ‘disapplies’ Practice Direction 4C (which permits public attendance at hearings) on the grounds that there is now no public courtroom gallery open for physical attendance and that watching a court hearing is not “a necessary excursion for purposes of the Coronavirus regulations now in force” (para. 56). However, “active consideration must be given as to whether any part of any remote hearing can facilitate the attendance of the public, if so Practice Direction 4C may be applied and the transparency order reissued.”  I’m not sure that the advice to give active consideration to facilitating attendance of the public is being taken on board.  One Court of Protection lawyer told me that the template order, at the bottom of the Guidance document, is being widely used, and it includes the statement that the hearing “shall take place in private”, hence the lack of public access.  This does not seem, on my reading, to be the intention of the Guidance, in which Mr Justice Hayden emphasises that “the culture of the COP is one of transparency” and that he is “determined to maintain this insofar as possible” (para. 54). He, at least, seems to be following his own Guidance in giving consideration to how the courts can be made accessible to the public.

I hope that, like Mr Justice Hayden, more judges in the Court of Protection will follow the Guidance he authored and give serious consideration to opening up remote court hearings to the public.  And once lockdown ends and there is time for reflection about which cases can or should be heard remotely, and which require face-to-face hearings, I hope judges will take the opportunity to do more remote hearings of cases, like this one, which seem suited for it – and that they will make appropriate arrangements for journalists, legal bloggers and members of the public to attend in order to preserve the culture of transparency.  Routine use of remote hearings for relevant cases would free up resources for those more complex cases, often involving lay parties, for whom the traditional courtroom often remains the most appropriate site for justice to be done and to be seen to be done.