The impact of Covid-19 on Courts and Tribunals

This article first appeared on the BPP Human Rights Blog at: https://bpphumanrightsunit.wordpress.com/

In the space of a couple of months, Covid-19 has transformed the way that courts and tribunals in the UK operate. At the time of writing, it has been announced that there will be no jury trials, and that courts and tribunals are being consolidated so that only 150 buildings will remain open to the public, prioritising the most urgent cases concerning the ‘deprivation of liberty, public safety, and individuals’ rights and welfare.’ [1] Others that are deemed less important are either being postponed or converted into alternative formats, such as case management discussed over the phone, or, at best, video hearings. In just two weeks, there has been an 800% increase in the number of hearings taking place over telephone and video, a number far higher than those happening in person.[2]

Postponement risks delaying justice and can lead to a whole range of knock-on effects on different aspects of the claimants’ lives. It is particularly problematic in certain criminal cases where an individual’s liberty is at stake, and delay could mean retaining them in custody for unacceptably long periods of time. The implications of using alternative formats for trials and hearings, however, are more complicated to assess, and some would argue that they can present both a challenge and an opportunity.

Indeed, before the pandemic, there have been discussions among academics[3] and the judiciary[4] about the future use of technology in the legal world. It has been acknowledged that the use of online trials and hearings could actually increase efficiency by saving time and reducing courtroom workload, ensuring that only the most trial-appropriate cases reach the courts. From 2016, efforts have been made to modernise and digitalise the justice system through the HMCTS reform programme,[5] coupled with its ‘Digital support’[6] and piloting of certain online benefits appeals.

Unfortunately, coronavirus has forced the process to happen before all of the right mechanisms and safeguards were in place. As a result, the potential downfalls of online justice are being exacerbated, in both adversarial contexts where cross-examination is key, and inquisitorial ones (e.g. in the FTT (Social Entitlements Chamber), where the ability to assess the applicant is very important). Problems with technology, for example, ‘can make [the] participant and their evidence seem less engaging, or difficult to follow,’[7] which risks subconsciously influencing the decision. Poor connection issues and lack of visibility could lead to ‘marginalisation and disconnection’[8] on both ends, with participants feeling more isolated and judges struggling to read body language and potentially even to empathise, particularly where ‘preoccupation with the technology distract[s] […] attention from the substantive content of the case.’[9]

Even when the technology does work, issues are already emerging due to the inherent difficulties of carrying out justice online, such as concerns about its lack of transparency and accessibility. Some have pointed out the problem of ‘closed justice,’ as video hearings cannot be accessed by the public and there are only a limited number of journalists, who focus on the most serious cases.[10] Another concern raised even before the pandemic is the risk of digital exclusion of certain groups of people who find it hard to access or use technology (e.g. the elderly, homeless people and detainees).[11] The virus has brought this to the fore with the increased isolation and limited possibilities for in-person assistance due to law centres and many charities being closed.

The uncertainty of the situation means that we cannot be sure of the full scale of the impact at this point in time. However, what can be encouraged is the development of necessary safeguards and strategies to ensure effective participation, by improving the quality of technology and the communication between claimants/defendants and their representatives. [12] Both formal and informal support mechanisms[13] are also needed to ensure that they are not alone, in what many may find a strange and unsettling experience.

By Maria Shepard


[1] https://insidehmcts.blog.gov.uk/2020/04/08/responding-to-coronavirus-in-our-courts-and-tribunals/ date accessed: 13.04.2020

[2] Ibid.

[3] http://www.susskind.com/ date accessed: 13.04.2020

[4] https://www.judiciary.uk/wp-content/uploads/2016/07/civil-courts-structure-review-final-report-jul-16-final-1.pdf date accessed: 13.04.2020

[5] https://www.gov.uk/guidance/the-hmcts-reform-programme date accessed: 13.04.2020

[6] https://www.goodthingsfoundation.org/projects/hmcts-digital-support-pilot date accessed: 14.04.2020

[7] https://justice.org.uk/wp-content/uploads/2020/03/JUSTICE-briefing-Coronavirus-Bill.pdf: para 27, date accessed: 13.04.2020

[8] http://www.transformjustice.org.uk/is-closed-justice-a-price-worth-paying-to-keep-courts-running/ date accessed: 13.04.2020

[9] ibid.

[10] http://www.transformjustice.org.uk/is-closed-justice-a-price-worth-paying-to-keep-courts-running/ date accessed: 13.04.2020

[11] Preventing digital exclusion from online justice [2018] https://justice.org.uk/our-work/assisted-digital/ date accessed: 13.04.2020

[12] https://justice.org.uk/wp-content/uploads/2020/03/JUSTICE-briefing-Coronavirus-Bill.pdf  para 26 and 29, date accessed: 13.04.2020

[13] Ibid, para 29.

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