Are the wheels of justice still turning during the pandemic?

A look at how the Courts are coping during Covid-19 and what changes have they been forced to make.

On Monday the 30th of March the majority of courts across England and Wales faced unprecedented times as they were forced to close their doors to the public in order to minimise the risk to staff and their users in light of the coronavirus pandemic.

Since last Monday, over half of the Crown, Magistrates, County and Family Courts have closed leaving only 157 of the 370 court and tribunal buildings in operation and even then, only for the most essential hearings.

(You can find out which courts and tribunals are open across England and Wales here: https://www.gov.uk/guidance/courts-and-tribunals-tracker-list-during-coronavirus-outbreak )

What do these closures mean for the criminal Courts?

The criminal justice system has for years been underfunded and overlooked, resulting, for many, in the failure of the proper administration of justice. The ongoing closures of courts and tribunals in the wake of the virus will inevitably burden the court further with long and costly delays which will surely contribute to further judicial failings. As highlighted by the old legal maxim ‘justice delayed is justice denied’.

How can this be avoided? 

In short, it can’t. However, preventative measures are underway in order to lessen the disruption. In a statement given by the Lord Chancellor Robert Buckland, we are advised that current working practices have to change in order to ensure our court system continues to function. He advised that the Crown and Magistrate Courts should conduct as many hearings as possible by telephone or video link. However, the nature of the matter must be considered as it may not be suitable in all cases or appropriate for specific parties, such as litigants in person, or those who are particularly vulnerable. In addition, the most serious matters held in Crown Court require a number of participants to be present which will also prove difficult.

The Lord Chief Justice has issued a statement addressing such problems and the decision has been made to suspend all trials in the Crown Court that are expected to last for more than three days. All cases estimated to last longer than three days and that are listed to start before the end of April 2020 will be adjourned. Other cases where remote trials are deemed appropriate will then be considered in order of priority.

What about the Civil and Family Courts? 

Fortunately, the rules in both the Civil and Family Courts are far more flexible and although not preferable, telephone and video hearings can be conducted in the vast majority of matters.

Under the Family Procedure Rules 2010 there is provision for the use of remote hearings in appropriate cases. Under rule 1.4(e) the court must further the Overriding Objective by making use of technology. However, following the newly published protocol, it remains a matter for the judge to determine the method by which the hearing should be conducted. The full protocol can be found here:

https://www.gov.uk/guidance/coronavirus-covid-19-courts-and-tribunals-planning-and-preparation#how-we-will-update-you-about-the-impact-of-coronavirus-on-courts-and-tribunals

Sir Andrew McFarlane, president of the family division has issued national guidance for the Family Court. The full document can be accessed through the Courts and Tribunals Judiciary website or by following this link:

https://www.judiciary.uk/wp-content/uploads/2020/03/Presidents-Guidance_Covid-19-2.pdf

The guidance contains helpful information on the categories of hearing that are suitable for remote hearing, these include:

a.    All directions and case management hearings;

b.    Public Law Children:

i.                    Emergency Protection Orders

ii.                  Interim Care Orders

iii.                Issue Resolution Hearings;

c.     Private Law Children:

i.                    First Hearing Dispute Resolution Appointments

ii.                  Dispute Resolution Appointments

iii.                Other interim hearings

iv.                Simple short contested cases

The relevant jurisdictional rules and practice directions on using video and audio technology in court can be found here:

https://www.judiciary.uk/wp-content/uploads/2020/03/Remote-hearings.Protocol.Civil_.GenerallyApplicableVersion.f-amend-26_03_20-1-1.pdf

What are the effects of working remotely?

In addition to the physical closures and the government’s emphasis on the use of technology, there are also a number of administrative changes, examples include:

–       Parties are to produce indexed and paginated electronic bundles and these are to be provided to all parties and representatives well before the hearing. Bundles are only to contain essential documents. Bundles should be in .pdf or another format and filed on CE-file or to sent by link to an online data room, emailed or delivered on a USB;

–       As of Friday the 3rd of April the process of making a C100 application for a child arrangement order, prohibited steps order or specific issue order can now be done entirely online. https://apply-to-court-about-child-arrangements.service.justice.gov.uk/

When will the courts return to normal? 

Arguably, some of the changes that the courts have been forced to make have been long awaited. The new need for the use of technology has forced the courts to modernise their sometimes, antiquated processes, just at a time when many law firms convert to paperless systems. Clearly, this will have a positive impact on the environment. In addition, telephone and video hearings are far more accessible to a range of people including the disabled. These methods may also be more cost effective. However, it remains to be seen whether these changes will become embedded in the long term. It may be that these changes are embraced, and we never see a return to ‘normal’ practice.