We use cookies to collect and analyse information on site performance and usage to improve and customise your experience, where applicable. Click OK to use our website.

Virtual courts

08 May 2020 / Courts Print

Life in technicolour

COVID-19 may have wrestled the legal world into embracing the technological advantages of the 21st century, but not every matter can be dealt with remotely, say judges.

Law Society nominees on courts user groups have also brought their concerns about technological limitations to the Chief Justice Frank Clarke.

The nominees had been involved in the experimental moot courts to prepare for remote hearings and were concerned at the significant limitations of the technological platform being employed by the Courts Service.

A key group of commercial litigation lawyers has also been voluntarily helping the Courts Service to establish remote court hearings during the current COVID-19 pandemic.

The Commercial Litigation Association of Ireland (CLAI) has pooled its collective experience and knowledge to assist in developing how remote hearings will work in this jurisdiction.

In this work, the CLAI is following the lead of Chief Justice Frank Clarke and court presidents, who jointly issued a press statement before Easter, stating that they would do what they could to get remote hearings up and running for the new legal term.

The voluntary team is hopeful that the establishment of the principles of remote hearings will have global application across all the courts in due course.

The Courts Service’s stated goal was to have remote hearings up and running by the start of the new legal term on 20 April. Testing, piloting and mock hearings were undertaken for two weeks before the new term started.

And, for the first time ever, certain courts in Ireland sat on 20 April, with all parties being present via remote video technology.

The Supreme Court was the first out of the blocks, piloting remote technology with a short case-management hearing. The court displayed the sitting on screens for court reporters. The Court of Appeal also held remote hearings the same morning.

Remote observers

Other courts will roll out the technology in suitable cases over the coming weeks, a Courts Service spokesman confirmed.

A protocol is being finalised to allow for bone fide members of the press to remotely link into such hearings as observers – acting as the eyes and ears of the public.

The in-court hardware is the same as that usually used for video-link to prisons and videoconferences with remote witnesses.

Courts Service chief executive Angela Denning said that existing technology had been repurposed to enable judges, registrars, and parties to cases to join virtual courtrooms.

Virtual meeting room

A virtual meeting room will be set up for each court sitting, using a service powered by the PEXIP video-streaming app.

Participants can join a PEXIP session from other video-streaming services – including Skype, Zoom, Cisco Webex and Teams – without the requirement that all parties use either the same app or a managed integration tool to connect.

Justice Minister Charlie Flanagan warmly welcomed the Supreme Court’s first use of video technology to hear cases remotely.

Commenting on 20 April, he said: “I believe that today’s innovative pilot sitting is a landmark day for the courts, and one that will further contribute to the efficient administration of justice in our State at this difficult time.

“As demonstrated across the globe, the COVID-19 crisis is changing day-to-day life in unprecedented ways,” he added.

“It is important to note that the courts continue to sit in-person for urgent business. I know this is an anxious time for all concerned for many reasons, and I welcome the special arrangements and social distancing measures introduced by the Courts Service in response to the COVID-19 pandemic.”

Feedback

Law Society President Michele O’Boyle has pointed out that the Courts Service is developing and providing this new facility without the luxury of detailed engagement and testing, and the service is asking practitioners who take part to appreciate these constraints and provide feedback to ensure that it can provide a viable virtual court experience. 

Remote hearings, however, will not be suitable for all cases, and the capacity to deal with large numbers of remote hearings simultaneously will be constrained by the Courts Service’s infrastructure.

For that reason, the president of each court will issue guidance or practice directions regarding how remote hearings will operate in their court.

Parties, practitioners and interested members of the public should follow those details for greater information about how cases in which they have an interest will progress.

British position

Across all England and Wales jurisdictions, around 40% of hearings have continued, either in traditional fashion or remotely.

These cases have largely been shorter hearings, without difficult evidence or high emotion, and the judges have said they recognise that not every matter can be dealt with remotely. Jury trials have been suspended since 23 March.

The Lord Chief Justice has said that the default position now in all jurisdictions must be that hearings should be conducted with one or all participants attending remotely. “All other hearings in the Crown Court that can lawfully take place remotely should do so,” he said.

Blunt instrument

In a letter to the legal profession on 9 April, the Lord Chief Justice, the Master of the Roll, and the president of the Family Division said: “National guidance is a blunt instrument and cannot take any account of the strengths or weaknesses of local resources (judicial, staff and technological) and other important factors which vary from court to court and from case to case.”

They state that the first and best option is for the judge to work in one of the courts that remain open or staffed, and to conduct a hearing with some or all of the participants attending by phone, video or an internet platform.

Less satisfactory

Dealing with anything not intrinsically simple by phone is less satisfactory than by video. And there may be real difficulties in taking hotly contested evidence by telephone or laptop, the leading judges have said.

Judges are not expected to hear the same volume of cases remotely as they would in person.

The overarching criterion is that whatever mechanism is used to conduct a hearing must be in the interests of justice.

Mary Hallissey
Mary Hallissey is a journalist at Gazette.ie