Briefing Note: The Coronavirus Bill and the Rule of Law

In light of the plans to rapidly expand the use of telephone, video and Skype hearings in the justice system, this briefing discusses the safeguards that must be put in place to ensure that access to justice and open justice are maintained under the rule of law.

Summary

The following recommendations would uphold the rule of law and access to justice in the context of the rapid expansion of telephone, video and Skype hearings in the courts and tribunals system.

1. Non-urgent trials should be delayed, and existing exceptions relating to the use of video hearings set out in Criminal Practice Directions must be applied. Individuals who are neurodiverse, have a learning disability or are experiencing mental ill health that impacts on their communication or comprehension skills should be excluded from trial by video hearing.
2. All parties in hearings facilitated fully by video link, Skype or telephone must be provided with effective access to free legal advice.
3. Judgments given in cases that are held remotely must be given in writing and made publicly available to ensure that established principles of open justice are upheld.
4. The impact of fully video hearings on the ability of legal representatives to effectively communicate with their clients must be monitored.
5. Resource should be dedicated to proactively identifying parties who may be considered vulnerable under existing law and practice directions and ensuring that reasonable adjustments are made to enable them to participate fully in proceedings. The impact of shift in mode of proceedings on individuals with protected characteristics under the Equality Act 2010 should be monitored.
6. The failure rate of the technology used and the nature and extent of technical difficulties encountered must be monitored and recorded. Parties and legal representatives should confirm that they consider the performance of the technology sufficient to facilitate a fair and effective hearing.
7. HMCTS should urgently expand technical support to parties and Judges facilitating fully video hearings.
8. All remote hearings must be recorded, with transcripts of remote hearings being made available as soon as practicable to parties to the case and third parties. Where the recording facility fails and cannot be recovered the case should be adjourned.