A major report on the impact of the pandemic on the tribunal service has found that almost a third of judges found it “difficult to communicate” at video hearings in the first few months.
Judges were much more satisfied with the performance of Zoom than the Cloud Video Platform rolled out by HM Courts & Tribunals Service, according to the study.
Conducted by the Legal Education Foundation for the Senior President of Tribunals, Sir Keith Lindblom, it was based on responses from just over 1,500 judges who took part in hearings from 19 March 2020 to the end of July 2020.
It found that 28% of judges found it difficult or very difficult to communicate with parties during telephone hearings and 32% at video hearings.
Researchers said: “Practical barriers were created by the practice of judges ‘muting’ participants, low-quality technology, impairments in the interpretation process and restricted access to broadband.
“Psychological barriers were created by the reduced ability to establish rapport with appellants, and by the increased range of tasks required of judicial office holders in a virtual hearing environment.
“The requirement on the judge to monitor the virtual hearing environment could distract them from attending to parties’ needs in the same manner that they would be able to in a physical hearing.”
The report, Understanding the impact of COVID-19 on tribunals: The experience of tribunal judges, found that 45% of judges said it was difficult to identify when parties were vulnerable and required reasonable adjustments at telephone hearings, with 35% saying the same for video hearings.
“Respondents reported that judicial office holders had to take a proactive role in identifying vulnerability and disadvantage in remote hearings, and to work harder to establish rapport in the early stages of hearings to facilitate this.
“Some respondents reported that the fact that some parties were more relaxed when able to join hearings from their own home actually masked their vulnerability, making it harder for judges to identify and address barriers to participation.”
The researchers went on: “Respondents reported that poor picture quality and audio made it difficult to identify when parties were struggling, undermining the potential for video hearings to address the issues experienced in telephone hearings.”
The “overlap between parties who were likely to be vulnerable and disadvantaged, and those with reduced access to technology” exacerbated problems and judges recounted how some parties without sufficiently good broadband “were forced to join their video hearing by telephone, making it impossible to monitor visual clues”.
The report found that 83% of judges were satisfied with Zoom, compared with the 69% with the Cloud Video Platform and 65% with Skype for Business.
Sir Keith said initiatives taken after the research was carried had “unquestionably improved” the experience of remote hearings for judges and users.
However, the survey’s findings still held “a great deal of value”, with the “lack of connectivity” a continuing problem. HMCTS should “be conscious of the ‘digital poverty’ that may prevent access to a remote hearing”, he cautioned.
Sir Keith went on: “Though telephone and video hearings have worked well in the tribunals during the Covid-19 pandemic and have helped us maintain access to justice in this extremely testing time, we must acknowledge that for many people and in many cases they are not going to provide the best form of hearing we can offer.”
Dr Natalie Byrom, director of research at The Legal Education Foundation, who wrote the report with Sarah Beardon, commented: “In spite of the scale with which remote hearings have been adopted, there are still large gaps in our understanding of their efficacy and impact.
“We have very little data on the impact of remote hearings on outcomes, judicial decision making, and the experience of court and tribunal users.”