Remote Hearings: an opportunity to modernise the criminal justice system

Remote hearings were introduced early in 2020 in response to the COVID-19 pandemic. On 5 January 2021, the Lord Chief Justice published guidance in light of the third lockdown and stated that “No participant in legal proceedings should be required by a judge or magistrate to attend court unless it is necessary in the interests of justice. Facilitating remote attendance of all or some of those involved in hearings is the default position in all jurisdictions, whether backed by regulations or not”. On 17 March 2021, the Lord Chief Justice issued updated guidance.

The Lord Chief Justice announced this week that over the next few weeks and months it will be possible and desirable to increase attendance in person at Courts where it is safe and in the interests of justice. He stated that “Remote and hybrid hearings will still play their part in managing footfall in courtrooms and public areas”.

For many people, one of the few positives to emerge from the pandemic and lockdown is the opportunity to find innovative ways to work. 

Going forward, there needs to be a proper review of how court hearings take place and which hearings have to be in person.

As a trainee solicitor in the early ’90’s, I recall being asked by my principals to do a case management telephone hearing at the county court. These types of hearings for civil proceedings in both the county court and high court were the absolute norm and this was 30 years ago.

Of course, in many instances, justice can only be achieved by in person attendance, but there are many examples where hearings should be remote, which would provide many benefits:

1. Any hearing where the Defendant is not required to attend should be remote. There is absolutely no reason why parties should have to attend. The Criminal Procedure Rules should be amended to reflect that. This would apply in both the magistrates court and the crown court.
2. Consideration needs to be given for PTPH’s, where the Defendant is on bail and whether they can also be dealt with remotely. Some of my colleagues might disagree, but it might be of future benefit to all, if the Defendant could either attend the solicitor’s offices or barrister’s chambers for such a hearing. In all likelihood, there will be more space for conferences, before and after the hearing, in a more comfortable environment. This should not be difficult to achieve. This is something that might also be possible for magistrates’ court hearings, or at the very least, could be a possibility.
3. Where Defendants are produced in person for custodial hearings, then of course, the advocates should attend in person. If they are being produced via video link though, consideration should still be given as to whether the legal representative might appear remotely as well.

It goes without saying that trials must be carried out in person. Additionally, sentencing hearings should also be carried out in person, unless that it is felt beneficial for the Defendant to be sentenced via video link, which is becoming a frequent practice today.

However, there are huge benefits to the above and potentially, it could represent substantial savings. 

Firstly, there will be a reduction in a number of people having to travel and in the court buildings. 

Secondly, it would enable advocates to appear in more than one court in the same morning without having to travel from one court to another. Bearing in mind the numbers of people who are leaving the profession, this would enable advocates to potentially cover more hearings with fewer people.

This blog is not about legal aid and the issues surrounding legal aid; however, it is worth pointing out that if the government are looking for ways to increase legal aid without troubling the Treasury, then the more that hearings are remote, the less travel disbursements will be incurred. Solicitors are paid for their reasonable travel disbursements to prisons and courts, and I would envisage that the amount that the Legal Aid Agency have had to pay out for disbursements over the pandemic has been massively reduced with the vast part of our job becoming remote. 

None of the above is particularly revolutionary and as I stated at the outset of this blog, this was the norm for administrative hearings in the county court and the high court in the early ‘90’s.

We must not miss the opportunity to modernise the Justice system and I hope the representative organisations for all stakeholders in the CJS will argue for and work towards something along the lines of the above.

Paul Harris is the Senior Partner of Edward Fail, Bradshaw & Waterson.