Birmingham

Law in the time of COVID-19: A Practitioners Guide to Hearings

Article by Naomh Gibson

In Ernest Hemingway’s 1926 novel, The Sun Also Rises, characters Mike Campbell and Bill Gorton discuss Mike’s money troubles:-

“How did you go bankrupt?” Bill asked.

“Two ways,” Mike said. “Gradually and then suddenly.”

Gradually and then suddenly

Much like Mr Campbell, the legal profession in the UK has also had to quickly come to terms with something which was slowly and inevitably coming down the pipeline  – video-link and telephone hearings. 

The spectre of remote hearings has always been on the horizon. There were semi-frequent pilot schemes and trials in the decade leading up to the COVID-19 pandemic. For example, from 2009-2010 HMCTS ran a ‘Virtual Court’ pilot for 12 months in two magistrates’ courts in London and North Kent, covering 15 police stations in London and one in North Kent (MOJ, 2010). While the main drawback of the pilot was the expense, researchers agreed that broadening the use of the technology might improve the economic case for its installation. The consensus was a ‘more integrated and fundamental inter-agency system would probably deliver better efficiency savings’.

Similarly, between 2018-2019, HMCTS ran pilot schemes for remote hearings in the Tax Tribunal and the Immigration and Asylum Chamber in Birmingham and London for a limited number of simple contested matters, usually case management hearings. As before, while the results were generally positive, as noted by the Master of the Rolls Sir Terence Etherton, the principal complaints concerned the reliability of IT equipment and the absence of training of the judiciary for the use of that system (see here). Again, underfunding and under-implementation proved to be the stumbling blocks of an otherwise ambitious and innovative project.

On 20 June 2018, HMCTS announced that part of their £1bn reform programme projects would include judicial training on new technologies, an improved telephone conferencing system and ‘assisted digital’ i.e. a service for members of the public (including litigants in person) who have limited digital capability or who are unable to access resources and information digitally – including web-chat, telephone and face to face support – to be rolled out between September 2017 and March 2022 (see here). So far, so good. And then COVID-19 happened.

Current arrangements

From 18 March 2020, HMCTS has guidance on conducting remote hearings which is updated every few days (see here).

The essential headlines to take away are as follows: HMCTS provides an essential service, and this cannot stop during the pandemic. They will therefore try to ensure your hearing goes ahead.

However, HMCTS will have to make decisions on prioritising which cases are heard and in what order, as they always have. This is because, overnight, HMCTS have had to implement technological measures which would typically be in the works for months, potentially several years – as seen above. There will inevitably be teething problems, and this may cause a backlog while solutions are found.

Therefore, unless your hearing relates to a particularly urgent matter, expect that it may be considered low priority unless:

  • It relates to the custody or detention of an individual; 
  • It relates to the immediate well-being or safety of an individual and is not mitigated by social distancing protocol i.e. findings of fact for Child Arrangement Orders which are now moot as the children are limited to direct contact within the family home and the applicant family member does not live with them;
  • It relates to public health legislation, particularly under the Coronavirus (Emergency) Act 2020.

Physical hearings are to be avoided as far as possible, except in the rare situation where they cannot be held remotely. Practitioners should consider what can be done to minimise the need for physical presence – particularly as from 30 March 2020 only 157 Courts and Tribunals will be open to the public (see HMCTS court tracker for updated information).

Ultimately, the decision as to how a hearing is conducted is a matter for the judge, magistrates or panel, who will determine how best to uphold the interests of justice. Any live hearings from Monday, 23 March 2020 will need to be approved by the judge hearing the matter, if necessary in consultation with their leadership judge. As such, if you consider a hearing must be in person, seek permission from the judge as soon as possible. 

What if my hearing is in person?

If your hearing must be in person and you have approval for this, contact your designated priority hearing centre/check the HMCTS guidance 24 hours ahead of the hearing to confirm what their updated COVID-19 protocol is – given the increasingly fast-paced developments, there may be last-minute changes in how the hearing is to be conducted.

General good practice is to maintain standard social distancing protocols where possible, e.g.:

  • Do not attend the hearing if you or anyone in your household has had symptoms and you have not yet completed the self-isolation period;
  • Bring your own drinks and avoid any court-supplied water carafes or fountains;
  • Bring your own sustenance as there will realistically be limited café services in or near the court building;
  • Bring tissues and/or handkerchiefs to wipe down surfaces or use as a physical barrier if needed;
  • Keep separation distance (2m/6ft) from people at all times, including when in queue to get into the court building or go through security;
  • At security, open your own bags/belongings for checking – particularly if security staff are not wearing gloves;
  • At security, if the tray for visitors’ belongings is not lined with paper or you are concerned it is not clean, put your belongings in an open bag and ask that it be checked that way instead;
  • Do not use elevators if at all possible. If you must, use elevators one person at a time, save for any person who is accompanied by a medical professional or member of their household such as a carer; 
  • Do not share documents/ Ipads/ holy books/ oath laminated sheets etc;
  • Take breaks every 2 hours during hearings to wash/sanitise hands – hand-washing is preferable to using hand-sanitiser.

What if my hearing is remote?

If your hearing is to be conducted remotely, ascertain quickly whether it will be by telephone or video link, and using what software. Typically, BTMeetMe is being used for telephone hearings, and Skype for Business is used for video link hearings. Telephone hearings may also be via BT Telephone Conferencing, Legal Connect, Kidatu, and Arkadin.

There is no need for specialist equipment for either of these types of remote hearing. Telephone hearings require access only to a telephone, and video-link hearings require access to a laptop with an in-built webcam, or a PC with a webcam plug in option. The mobility of laptops will make them preferential as opposed to desktop computers. iPads and iPhones are not recommended, but as a backup they can be used if all else fails.

While not essential, participants might find the audio for remote hearings runs smoother when using a headset, or headphones with microphone. This allows the audio from others to play directly into the participant’s ear, and the audio from the participant will be picked up much easier by the proximate microphone. This has the benefit of avoiding background noise from interfering with the remote hearing, especially for those working from home with noisy pets/children/partners.

It is unlikely to apply due to social distancing protocols, but if you are in a remote hearing in the same room as a colleague/client and you wish for them to also hear the call and contribute freely, consider using a splitter adapter/jack so both of you may use headsets/headphones, or alternatively a Bluetooth speaker.

Participants to a video-link hearing do not need Skype for Business to join the same, however they will need the free Skype Meetings App. Each participant will receive instructions and a link to click to join the hearing, as a ‘guest’.

Once users click on the link, they should follow the browser’s instructions for installing Skype Meetings App. Do this as early as possible to be prepared for your hearing.

If you don’t receive a link, send the Court a request for a link and ask them to do the following:

  • Click on Meeting Entry Info in their Skype session – they will see this image in the bottom right hand corner of the screen;
  • Click copy info on the new window and email that to the participants.

At least 24 hours before the remote hearing, do a dry-run with your colleagues or clients. Skype can be used and experimented with at-will between participants who have accounts. As BTMeetMe usually operates by the Court dialling out, a dry-run for a telephone hearing may require using another platform and asking a colleague to dial out to participants as the ‘Court’.

At the time of the video-link hearing, participants go to the Skype Meetings App sign-in page, enter their name, and select “Join”.

Ensure you are dressed appropriately for Court and have a neutral background – if you wish to blur your background, hover over the “Video” button during a call. In the pop-up that appears, toggle the “Blur my background” setting and Skype will automatically adjust your video feed so you remain in focus while a blur is applied to your background.

At the time of the telephone hearing, participants will be called and must accept the call as normal. Good practice during a telephone hearing, as you will not be visible, will be to ask every party to introduce themselves at the beginning of the call, and then to identify yourself before you speak each time. Consider keeping your microphone on mute during remote hearings when you are not speaking. Judges should take the lead in directing when they wish to hear from specific parties to avoid cross-talk.

Conclusion 

Only time will tell how successful remote hearings are in practice. For some, one of the few benefits of the current situation is that it has provided a kick up the proverbial to the legal profession to modernise.

While it would have certainly been more beneficial if HMCTS had made greater progress in the past decade at implementing remote hearing methods before the current crisis, they have laid a modest framework upon which to build. Any practitioners previously involved in pilot schemes should share the wealth of their experience, and together the profession can adapt.

Reference list

‘Virtual Court pilot: Outcome evaluation’ (Dec 2010) Ministry of Justice Research Series 21/10

A Barrister’s tips for giving evidence in the Family Court

Following, Jonathan Bott’s successful lecture at Community Care Live in Birmingham last year, he has recently provided an article for Community Care Inform, the online resource for social work professionals entitled ‘A barristers tips for giving evidence in family cases’. The article is designed to assist social workers when giving evidence and a copy can be accessed here.

This article was published on Community Care Inform – an online resource for social work professionals, which provides guidance and tools, research and legal information to enable robust evidence-based practice and decision-making. © Community Care Inform, 2016.