In a virtual appearance before the House of Lords constitution committee last week, the Lord Chief Justice, Lord Burnett of Maldon, told peers that the courts system will never again operate as it did before the coronavirus.
He told the committee that Judges and practitioners had found the use of remote hearings to be as successful as and more convenient in many types of case than the 'normal' pre-Covid ways.
The full Law Society article can be read here and whilst some might agree with the LCJ, there are almost certainly others who won't.
Lord Burnett eulogises about the use of technology to ensure that cases are able to proceed, especially by the use of remote hearings. But the President of the Family Division (Sir Andrew McFarlane) seems to be at some variance with the LCJ when giving three judgements (Re Q, Re A and Re B) in the last two weeks about the use of remote hearings and the need to individually assess whether a particular form of hearing is appropriate for a specific case. A number of considerations are highlighted in the judgements in order to determine, ultimately, whether a remote hearing would be fair and just.
There are clearly cases (both civil and criminal) where remote hearings are likely to be unsuitable. For instance, where a party is unable to engage adequately with remote evidence due to an inability to access or understand the relevant technology. Or, where there might be an imbalance of procedure in requiring a particular party but no other party or advocate to appear before the Judge. Additionally, many practitioners advocate that a remote hearing can be inappropriate for vulnerable parties or those with mental health and/or learning impairment issues. For such people (quite prevalent in some forms of court work) being able to participate on a face to face basis is preferable if not imperative.
Then there is the issue of under investment in the courts system that Lord Burnett rightly alluded to in his remarks. He commented that it is vital that the current investment continues. But, is this realistic? When we are all able to return to something approaching normal, there will be an enormous black hole in this country's finances. And there are likely to be greater priorities in the form of the NHS and social care to name but two. Will the investment required to proceed with technological developments in the courts system grow or will we revert to the chronic under-investment that has blighted the system for decades? Only time will tell but there must be serious concerns about the government's ability to throw money at many aspects of society, this area included.
The LCJ is surely right to assert that the courts system will be different to its pre-Covid days. The use of appropriate technology (rushed forward to try and assist in the current climate) in appropriate cases must continue to be utilised once we are eased out of the lockdown. But caution must also be taken to ensure that there is still room in the system to deal with cases face to face where that is deemed to be the most fare and just approach.
Lord Burnett, asked specifically about juries not sitting in trials, made it clear that this would have to be a last resort. It is hoped that a swift and equitable solution can be found to resolve the enormous backlog of cases, certainly within the criminal justice system, which require a jury to deliberate and decide. This is seen as a backbone of the courts system and a particular aspect that must return to pre-Covid ways.
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