A test in the family courts will be the next step in exploring fully video hearings, against a backdrop of widespread concern about the technology among judges, it has emerged.
The head of the criminal division has also listed the kinds of hearings that he could envisage being handled by video.
The judiciary has published the outcomes of its Judicial Ways of Working consultation, launched last spring, which received responses from or on behalf of 10,000 judges, panel members and magistrates. Almost 800 attended local meetings to express their views.
There is one paper for each of the criminal, civil, family and tribunals jurisdictions. The family paper, written by the president of the division, Sir Andrew McFarlane, said the expectation that hearings would be conducted with all parties and the judge on video (fully video hearings or FVH) was the area of reform which generated the most concern from judges.
“Some of you feel they are being proposed in the name of cost reduction but at the risk of justice. You are more open to the use of video links in family hearings recognising the value for vulnerable parties, and parties and witnesses who cannot travel to court.
“Although some of you need to be persuaded of the appropriateness of FVH in family altogether, some of you felt that uncontested cases could be appropriately held in this way.”
As a result, the family judicial engagement group – headed by Mr Justice Cobb – has “cautiously” approved a test of FVH of first directions applications in financial remedy cases, “given that they are, in the main, principally dedicated to case management using pre-prepared documents”.
Sir Andrew said: “You can be reassured that participation in FVH is not being foisted on anyone, and safeguards as to the process – and participation in it – are being built into the testing…
“It is firmly accepted by HMCTS that the decision on whether a hearing is conducted using video technology of any kind in any particular case remains an exercise of judicial discretion.”
Given the “range of legitimate concerns” raised by family judges about more fully video hearings, he said there were currently “no specific proposal” to expand FVH in the family jurisdiction beyond this test.
He added: “Specifically, and subject to the evaluation of the test, it is felt that FVH will not normally be appropriate for contested cases involving the giving of oral evidence, multi-party cases, cases concerning litigants in person, and/or cases concerning children.”
Further, he said the senior judiciary and HMCTS have accepted that:
- Robust technology is required for fully video hearings to succeed;
- Anyone appearing before the court must be clearly seen and heard throughout, as would be the case if they were physically in the court room. The video should ideally capture more than just the head-and-shoulders image;
- Broadband speed, Wi-Fi, and equipment used by those taking part in the hearing must be of a sufficient quality;
- The use of video technology should not compromise the confidentiality of family court proceedings. The senior family judiciary proposes that litigants participating in any FVH should do so from an ‘authorised place’, which could include, for example, a Citizen’s Advice Bureau office, a Personal Support Unit office, or a solicitor’s office.
These points cover the other jurisdictions too.
The civil paper, written by Master of the Rolls Sir Terence Etherton, and Lord Justice Coulson, deputy head of civil justice, recorded similar concerns among judges, particularly about final hearings.
However, many accepted that some kinds of hearings – particularly those involving legal representatives only, such as directions hearings, or specific interlocutory applications – were at least potentially capable of being dealt with by video.
Last November, a year-long pilot began in Manchester and Birmingham to hear applications to set aside county court default judgments by video.
“One area for evaluation will be the impact of video hearings on the judge. The tax tribunal pilot and judicial experience of the use of video-link suggest that video hearings bring different physical and mental strains on judges which need to be understood and addressed.”
The paper said that HMCTS has also downgraded its initial assumption that 25% of specified money claims up to the value of £25,000 that were contested and reached a final hearing could be handled by video. This has been reduced to 10%.
“However, we can see that, overall, the various strands of reform will mean that fewer cases will reach a final hearing stage: in particular, it is expected that, as a result of the OCMC [online civil money claims] project, there will be more successful mediations and more of the smallest disputes being resolved without an oral hearing.”
The judges echoed their family counterpart in reassuring colleagues that participation in video hearings would not be forced on anyone.
“We are a long way from the possibility that any final hearing with contested evidence will be regarded as suitable for a fully video hearing.”
Sir Brian Leveson, head of criminal justice, wrote in his paper that the original plan for all remand hearings in the magistrates’ courts to be FVH with the issue limited to the question of remand has been ditched.
“The crime service model is being redesigned so that the bench has the information it needs to permit pleas to be taken and directions given at the first hearing. The video remand hearing project team is now working with the police-led, Home Office-funded video enabled justice project.”
He said FVH trials would not be conducted either in the Crown Court or the magistrates’ courts, with the possible exception of Single Justice System cases, where there may be scope for the defendant to seek a fully video trial rather than come to court.
“An example could include the case of a defendant who lives in the south west with the alleged offence (such as speeding) taking place in the north east. This suggestion has yet to be developed by HMCTS.”
Sir Brian said that, assuming there was robust and effective technology which the judiciary considered appropriate, and further assuming that open justice was secured, there were hearings that could be conducted by fully video.
In the Crown Court, these were:
- Further case management hearings. This would not extend to compliance hearings;
- Bail applications;
- Legal argument including dismissal applications and applications to stay cases for abuse of process;
- Ground rules hearings governing how the evidence of young and other vulnerable witnesses is given;
- Pre-trial hearings to determine the admission of evidence of the previous sexual behaviour of a complainant in a trial of sexual assault; and
- Some straightforward fitness-to-plead hearings, relieving the need for busy psychiatrists to have to travel to court.