Remote hearings “can deal with credibility issues”

Susskind: Lawyers finding video effective

People should not presume that remote hearings cannot be used for cases where the credibility of witnesses is at stake, the IT adviser to the Lord Chief Justice has said.

Professor Richard Susskind said lawyers from around the world have reported that a full-screen view of a witness brought them closer to the “whites of their eyes” than being in the courtroom.

Speaking to peers on the House of Lords constitution committee, which is investigating the impact of Covid-19 on courts and online justice, the academic said the difference between looking at someone “the size of a postage stamp” and “filling the entire screen” was “manifest”.

He went on: “What is coming through, and this is a global experience, is that many attorneys from the United States and around the world are reporting that, actually, they find video remarkably effective and they can get nearer to the whites of their eyes than in the courtroom.

“I don’t think we should make assumptions – clearly we need systematic data on this – that if there are questions of credibility, there is no way this can achieved through a video hearing.”

Professor Susskind observed that, in lower-value cases, there were questions as to whether it was proportionate to hold a physical hearing in any event.

“As a generality across the world, video systems seemed to have worked quite well with large, complex commercial cases. The judge will have the discretion to decide which hearing mechanism is appropriate.

“But I do find it fascinating from the feedback that people are expressing surprise that from the video hearing you can get a real sense of the person’s credibility and their demeanour, by looking at them on quite a high definition screen where the video is quite close to their face.”

Last month, Family Court judge Mr Justice Williams said the “limited” advantage in the judge looking a witness in the eye to assess their demeanour and thus credibility was “often overrated”.

Professor Susskind said he accepted that on the screen you could lose “a whole bundle of body signals”, including the way someone was standing.

“But you could say this could emerge as a skill of the future – the online barrister who can read the signals better.”

He was answering a question from Lord Faulks, former justice minister and a QC based at 1 Chancery Lane, who said he had a 10-day trial scheduled for July involving witnesses with credibility issues.

The case was settled because the High Court could not offer a physical hearing for “over a year or so, which would effectively be a denial of justice for us”.

He said that despite the courts undertaking “a largely successful though unscheduled pilot” during the lockdown, there were some cases that caused real problems.

Professor Susskind said among the lessons emerging from remote hearings were that video hearings were better than audio ones, that judges found them “very tiring”, that lawyers needed to find ways to communicate during hearings, that document management systems needed improving, and that partly remote hearings were not as effective and raised questions of fairness.

Also giving evidence, Hazel Genn, professor of socio-legal studies at University College London, said being able to take advantage of online hearings was not just about computer literacy but about a high level of literacy in general.

“A lot of the debate focuses on processes, not outcomes. The people we should have in mind are those who do not get the outcome they wanted, but should leave the hearing thinking it was fair.”

The professor said it was “quite clear already” than clients “at the lower end of the income spectrum” were not able to access levels of advice they had before the crisis.

Both academics agreed that there was an urgent need for HM Courts & Tribunals Services and other organisations to collect data on remote hearings and that experience gained from the lockdown should be used to improve the court reform programme.

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