“It appears that we were quite a long way ahead of the game. A lot of countries essentially shut down their courts when these problems began to engulf them, which we did not do.” This was the conclusion of the Lord Chief Justice, when appearing in front of the House of Commons Justice Select Committee on 22nd May.
It is hard to gauge whether the Lord Chief’s assessment is correct. Many of the features of the English and Welsh court response to Covid-19 are echoed in the seven common law jurisdictions we compared it to: a closure of parts of the court estate; a focus on priority cases and switches to audio and video conferencing hearings. Our comparisons suggest that similar priorities have been placed on the types of cases heard across all our comparator jurisdictions: in crime, a focus on hearings pertaining to custody and detention; in public family law, a focus on emergency cases and family violence matters, including orders of protection. It is true that our comparisons do not extend to cases in the commercial court and the business and property courts, which the Lord Chief suggests “have carried on, not entirely but pretty much as normal.”
That said, though it is hard to make qualitative comparisons, it would appear that investment by the English and Welsh court system in technology did give the courts the capability to quickly transition their cases into audio and video hearings. It has enabled, for example, the English and Welsh system to restart new Crown Court jury trials, seemingly more quickly than other jurisdictions, many of whom have suspended them until further notice.
Of course, in addition to the system’s capability, in the coming months, capacity issues will be of huge concern. The Lord Chief was candid, in giving his evidence, that “we can expect to see a backlog of cases accumulate” and that handling it may require a number of temporary legislative measures, sitting days will need to be increased, and the use of fee-paid judges could augment the judicial capacity.
But, extra to capacity and capability questions, one of the real advances that Covid-19 has inspired in England and Wales is on the research into remote hearings. A recent rapid review of cases in the civil courts found “that the majority of respondents felt that remote hearings were worse than hearings in person overall and less effective in terms of facilitating participation.” Similar, a review into family hearings found “concerns chiefly related to cases where not having face-to-face contact made it difficult to read reactions and communicate in a humane and sensitive way, the difficulty of ensuring a party’s full participation in a remote hearing, and issues of confidentiality and privacy.”
It is worth saying that this research has also pointed to many advantages of remote hearings and usefully raised questions about how of the issues encountered over the last few months can be resolved. Yet, this research into the courts’ Covid-19 experience raises much more central normative questions about how justice and remote hearings intersect: in the future, which cases ought to be held as remote hearings? Who ought to decide that in each case— the court administrator, the Government accountant, the judge, the lawyers, or the actual citizen themselves? Should remote hearings have an equality of arms where everyone ought to appear remotely or should we continue to allow video hearings where some are physical gathered and others are beamed in? If so, in which cases?
These normative questions are fundamental justice questions. In the rush to respond to Covid-19, court officials and the judiciary have done an admirable job in solving capacity and capability issues. But to truly be ahead of the game, it is clear that these justice questions need an answer.
The Centre’s briefing on international court responses to Covid-19 can be read here.