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Bar calls for greater consistency in use and improvements in tech

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The Bar is calling for consideration to be given to greater consistency in the use of remote hearings and further investment in court technology, following a new Bar Council report on the administration and delivery of remote justice.

In what is the first evaluation of remote hearings in England and Wales from the primary perspective of legal professionals, ‘A lens on justice: the move to remote justice’ has collated HMCTS data collected from 2020 to early 2023 together with five Bar Council surveys of the profession to provide recommendations for improvements and reform. The report found the following:

  • Barristers' experience: Barristers are broadly in favour of remote hearings and recognise their benefits. Almost half of barristers surveyed (49%) would like to see the use of remote hearings increase. Many argued that consistency in application and procedural clarity is needed with some, particularly those working in publicly funded legal practice (crime and family), finding mixed levels of enthusiasm for remote hearings between different courts.
  • Technology and administration: Some progress appears to have been made to the infrastructure. Just over a third of barristers said they had experienced technical problems with the video platform in 2023, a significant decrease from 77% in 2021. The report recommends further investment to improve the infrastructure and administration of remote hearings.
  • Monitoring of data: HMCTS’s poor data collection does not allow for thorough monitoring or evaluation of the impact of remote hearings. The Bar Council calls for HMCTS to commit to regularly publishing data.
  • Numbers of remote hearings: This has declined from 58% of hearings at the COVID peak to just 25%, one in four, according to the latest available date from last year.

The findings complement the recent revision of the Lord Chief Justice’s Guidance on Remote Attendance by Advocates in the Crown Court and echo the Lady Chief Justice the Judgment in R v Ng and Another [2024] EWCA Crim 493 which notes (at paragraph 44) that more consistent practices ‘will enable the available counsel to be more efficiently used and increase the productivity of the advocates’.

Chair of the Bar Council, Sam Townend KC, said: “The Bar Council is calling for greater consistency and predictability as to the use of remote hearings which would be of benefit to all court users.  Remote hearings could be used more regularly where it is efficient to do so and can play a part in bearing down on court delays and backlogs. In this report, the profession has also set out where remote hearings are not working well or failing, hampering access to justice and productivity in the courts. It is welcome news, then, that the senior judiciary has already started to ‘grasp the nettle’ so far as the Crown Court is concerned. Some hearings, particularly those which dispose of a case or in which evidence is taken, are generally best done in person. Meeting important public needs, such as reducing the court backlog, and the benefits of remote hearings to the profession should not, of course, be to the detriment of the justice being done and being seen to be done.”

Hundreds of barristers submitted comments when completing the surveys that have informed this report, sharing their experiences of what has been working, what’s not and where improvements or changes are needed. Survey responses included:

  •  “For the right cases they are invaluable. The criminal Bar continues to shrinkand this ensures access.”
  • “The quality and the reliability of the tech often reduces the effectiveness of the hearings. More reliable technology would make for better justice. Some of the wrong hearings are being heard remotely/in-person. More thoughtful listing is required.
  • “Remote hearings are excellent for routine or simple matters. They are less effective for lengthy, complex cases or cases requiring extensive oral evidence. I hope we never go back to the bad old days of travelling 8 hours for a 10-minute hearing, but I am concerned that justice will not be done if we use remote hearings too often for the longer and more complex matters. It is about proportionality.”
  • “I think that remote hearings have huge benefits but are not always used for the right hearings. By way of example, I am commonly required to travel for two- or three-hour hearings in the county court for matters on the small claims track with no substantial witness evidence. By contrast, I regularly conduct four-day discrimination trials remotely. The practices are inconsistent and often illogical.”

Key statistics

  • There has been a significant and steep decline in the volume of remote hearings between 2021 and 2023, as recorded by HMTCS’s Audio-Visual Situation Report. The aggregate proportion of all hearings being undertaken (entirely) remotely fell from 58% to 44% in 2022 and 25% in 2023.
  • 77% of barristers surveyed said they experienced technical problems with video platform in 2021 but this reduced significantly to 35% in 2023.
  • When barristers were asked how much remote hearings should be used:
    • Half (49%) said they ‘should be used more frequently’.
    • 38% said ‘it is about right at the moment’.
    • 8% said ‘they should be used less frequently’.
    •  1% said they ‘should not be used at all’.
    • 4% said they ‘did not know’.
  • Those in crime and family were more likely to be in favour of remote hearings being used more frequently compared to other areas of practice.
  • Views on remote hearings also differed by location. Four in ten respondents working in London would like to see remote links used more extensively compared to more than half of all other respondents and up to two-thirds of those working in the North West and East of England.
  • There was reasonable consensus where remote should be the default such as with shorter applications, case management meetings, preliminary hearings, administration hearings, and small claims hearings.
  • There was also general agreement that for trials, especially longer ones, and those where contested evidence is involved, in-person hearings should be the norm.

The Bar Council recommends HMCTS:

  1. Improve data collection and monitoring around remote hearings and commit to regularly publishing data.
  2. Continue to support the judiciary in regular review of protocols for the use of remote hearings, with particular attention to the consistency of application.

The Bar Council recommends the Ministry of Justice:

  1. Commit to evaluating potential justice outcomes and procedural impacts.
  2. Significantly invest in the technology/tech support around remote hearings.
  3. Consider the views of professional court users in future plans around their use.

 

Read the report: Remote justice report May 2024