“Uphill battle” to engage judges in remote JR hearings

Remote hearings: Difficult with litigants in person

It is often impossible to sense how a judge is receiving submissions during remote judicial review hearings held during the Covid-19 lockdown, leading to confusion for advocates, a study has found.

Distant hearings using technology were necessary but presented multiple difficulties, said the research, involving interviews with barristers and solicitors with experience of telephone and video conference hearings.

These included technical problems, especially where participants lacked computers, stilted debate, and an inability to tell how judges were regarding submissions.

The research into the experiences of remote hearings was produced by access to justice charity Public Law Project (PLP), based mainly on interviews with 13 lawyers during the week beginning 6 April.

Overall, the lawyers concluded that, while they supported the JR review process continuing, remote hearings were most often inferior to to in-person hearings, even in such a heavily ‘law-focused jurisdiction’.

Challenges were acute where a litigant was unrepresented, especially where they had no access to the bundle.

One litigant in person began to cry during their hearing, while another cut out in the middle of their submission due to technical problems. This made it hard for the judge to respond effectively in the allotted time.

Clients, solicitors and judges were hampered when deliberating during hearings and a common work-around was communicating separately via WhatsApp or text message. Where multiple messages were received, this could be distracting for representatives.

Many interviewees complained that they could not see how submissions were being received, particularly by the judge during remote hearings. This could make it difficult to work out whether the judge had grasped a particular point.

One interviewee said delays and problems of over-speaking led to judges to “sort of sit back and listen more than they would otherwise”.

They noted: “That is obviously a disadvantage for debate and effective public hearings.”

The upshot was that some interviewees felt they could “only hear what the judge really thought in the final judgment”, which meant they were “fighting an uphill battle” in trying to engage the judge.

This had implications for the style of advocacy required.

Several interviewees said they would have preferred video-conferences but the court had opted for a telephone hearing instead because of technical issues. On other occasions, it was not clear why an audio-only link had been chosen.

Audio-only hearings could add to a participant’s feeling of being disconnected from the process. One described this as the participant being left “just staring into the abyss”.

PLP said it had found it impossible to gain observer status before hearings, because there was no time or streamlined mechanism to apply. Equally, sometimes it was a struggle for the press to gain access to public hearings to observe them remotely.

The next step in the ongoing research is to speak to lay clients, judges and court staff.

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