The impact of COVID-19 on our court systems has been significant. Many of the changes introduced are for the better and may be here to stay. Indeed, on Monday 10 May 2021 the Judicial Institute for Scotland convened a conference to discuss which of those changes will be with us in the long term and what further improvement can be made. For the most part, we have seen a substitution of face-to-face ("in-person") court proceedings for online and telephone hearings. There has therefore been a great deal of interest in the concept of "remote justice".
Across the UK, the vast majority of court hearings are currently taking place entirely remotely i.e., the judge, counsel, solicitors and witnesses all take part in proceedings via a video platform from their respective homes or offices. However, at the end of last year we were involved in what is known as a "hybrid trial" in the High Court of Justice in London.
So, what is a "hybrid" trial?
Hybrid hearings are those in which some participants, usually the judge and counsel, attend in person in the court room while others join remotely. In our particular case, it was identified that with several of the witnesses being based in Scotland, and the lawyers for some of the parties being based in different parts of the UK, it would not be realistic with current COVID-19 restrictions for an in-person hearing to take place. However, at the same time, one of the witnesses was based near London and wished to give their evidence in person.
Therefore, the agreed solution was that the trial would be run in a "hybrid" manner. The judge, counsel and one of the witnesses would be present, in court, in London. Lawyers, and all other witnesses would be dialling into the proceedings remotely, with a camera link to the court room.
In terms of practical arrangements this presented us with some difficulties that would not have occurred, were everything being conducted remotely. In particular, we had to ensure that all remote witnesses were provided with a bundle of documents that mirrored exactly the bundles that were being referred to in court. Luckily for us, this was a success.
In terms of technology, the fact that most witnesses were dialling in to proceedings via Microsoft Teams caused occasional problems. Those witnesses situated in the far corners of Scotland had slower internet speeds causing some delays in transmission. The judge was patient, but often had to ask for clarity on what had been said. To some, giving evidence remotely may be disadvantageous. My colleague, Eoghann Green, recently considered the main advantages and disadvantages of remote hearings.
From our experience, we found that it is important to still have a clear line of communication with your counsel. We achieved that using a dedicated WhatsApp group. This meant we could discuss the case without causing disruption - much easier than the traditional post-it-note passed between benches.
At times you may have thought you were watching a lunchtime episode of 'Judge Rinder' - slippers on, cup of tea in hand. However, these snippets of television court room drama were quickly dissipated when the judge asked lawyers to provide a certain document usually with a direct look into the camera. It was very much a moment of 'Oh, he's talking to us'. Despite the fact that we were sat in our homes, it still felt very formal. So much so, that we even dusted off and donned our suits for the occasion.
Overall, our experience of a 'hybrid' trial was positive. However, our view is that while certain aspects of justice will likely remain remote in the future, where witness evidence is required, on a case by case basis, careful consideration needs to be given to tactical and logistical considerations as to whether evidence be given in person or remotely.