The Lord Chancellor’s statement yesterday (18 March) suggesting that the majority of criminal court cases will go ahead during the Coronavirus pandemic reminded me of the conversations I’m having with my own children about our rigorous timetable of activities now that UK schools are shut. It’s extremely unlikely to happen and for everyone’s wellbeing, we’d be better off working out what the new normal really does look like.
The Rt Hon Robert Buckland QC yesterday admitted that staff absences are already impacting the courts and that the Government will have to prioritise which types of hearings take precedence. Criminal trials underway will continue as normal as far as possible. There was no mention of civil proceedings, which has caused outrage in some quarters.
Impending Crown Court trials of over three days are to be cancelled but around three quarters of Crown Court trials will be able to continue and much of that is thanks to more attendance “by telephone, video-link or online,” the Lord Chancellor said.
This would normally be music to the ears of those who have long advocated online courts but put simply, are we ready?
Speaking to Legal IT Insider, Tony Guise, a former Civil Justice Committee member and director of DisputesEfiling.com who has been involved in IT in the civil courts for the past 26 years, said: “The technology issue is flawed in different ways. From my perspective, to be able to work remotely what you need is for the documents to be available in a single cloud-based space and in the criminal sector they do have that: Caselines is one of the best bundling solutions on the market. The CPS has gone paperless and everyone can log in, so that’s great.
“But then you come on to whether you have remote filing; whether there are screens in courts, and whether you have good quality broadband, with fibre optic not copper cables. The big issue to realise is that there are no screens in most criminal courts and if there is a screen, everyone who participates will have to have a webcam, which they won’t. That’s before you get to the issues with the broadband, which is hard to fix because many courts are listed buildings.”
Re the civil courts, a £1bn modernisation programme is underway and the courts have for some time had Thomson Reuters’ workflow solution C-Track E-Filing (CE-File), but Guise says: “One requirement is to upload a core bundle but that module hasn’t been rolled out yet.”
His point about the lack of screens and infrastructure applies in civil court buildings too.
Guise is outraged that the Lord Chancellor didn’t refer to the civil courts in his statement yesterday and said that given the personal risks for lawyers and court staff involved, the Lord Chancellor should require all civil cases to be referred to mediation, as in Greece for example, and have those managed online. But speaking to Legal IT Insider, Johnny Shearman, a professional support lawyer at Signature Litigation, said: “In civil litigation, the CPR gives the flexibility to navigate problems, whereas in the criminal sector the Government is having to bring in emergency legislation to help deal with the delays.” He adds: “We are able to be pragmatic and all litigators have in their minds that this isn’t the time to be opportunistic.”
Signature has been using CE-File for a couple of years and Shearman says: “It takes away our need to go to court to file things so we can carry on with that system.”
He points out that the government yesterday activated new technology available in courts including Skype for Business on all staff and judicial laptops. A statement from HMCTS said: “We are seeking to make the best possible use of existing technology in the courts. This includes the Justice Video Service in the criminal courts, and provision for audio hearings that exists widely in the civil courts.” You can see the new provisions below.
It is good to see the government taking decisive and swift action to work around some of the technological barriers in place and there are further announcements to come. As in other areas of the legal sector, the coronavirus is likely to act as a catalyst towards faster modernisation that has been too long coming. But overestimating and underdelivering our immediate capability does no-one any favours.
HMCTS telephone and video hearings during coronavirus outbreak:
The Justice Video Service (JVS) was designed to work between fixed endpoints (prisons, courts and police stations). We have now begun the process of unlocking JVS so that it can also work with other laptops, which will mean criminal trials with JVS equipment can be joined remotely. At present, we can do this in up to 100 concurrent hearings – we expect to raise this to 500 concurrent hearings over the next seven days. By using this system, as many parties as the judge considers reasonable can join the hearing by video.Our audio conferencing system (BT Meet Me), which is widely used in civil courts, and includes the ability to record hearings in a way that meets the standards required of the justice system. We are rapidly increasing the number of licences we have and training staff in use of the system. We can now cover the equivalent of one third of the rooms across the whole court estate, in all jurisdictions. We expect to have complete coverage next week.To give us more quick and flexible capacity, we have also activated Skype for Business on all staff and judicial laptops. This change took effect today (18 March) and work is underway to train staff and judges as quickly as possible, as well as testing the technology to ensure it works for user. We expect to start using this at scale very soon. Legal professionals who wish to join hearings remotely may want to install Skype and test it on their own systems if they do not already have it.