Justice has to remain fair and open in push for remote hearings

The impact of the pandemic will be felt in many ways long after Covid-19 ceases to be a public health threat. Virtual meetings, webinars and online classes have become familiar. Now, the courts are moving to make greater use of remote hearings. They were introduced for civil cases in 2020 as the virus began to spread. More than 1,000 have taken place. The judiciary is seeking to extend the practice to criminal cases and to embed procedures in law. This is a sensible step, but one that must be approached with some caution.

A three-month public consultation has been launched. The default setting will remain hearings held in person, but video proceedings will become possible in most courts and tribunals. The most radical reform would be allowing some criminal cases to be heard remotely. This is mostly forbidden under existing law. The concern is to ensure a fair trial, especially in cases where people’s liberty may be at stake. It has long been considered essential that such hearings take place in person.

But this rule was relaxed in other parts of the world as the need to keep the wheels of justice turning during the pandemic grew. The judiciary is proposing remote hearings be gradually phased in for criminal cases. Some hearings will be excluded, such as a defendant’s first appearance at the magistrates’ court or when pleas are taken or verdicts returned. This is because justice requires the presence of the defendant in court. Jury trials are also excluded.

It makes sense to proceed gradually. The use of remote hearings must not in any way compromise a fair trial. This must be the prime consideration when courts decide whether hearings will be heard virtually or in person. The principle of open justice must also be maintained. Most court proceedings are open to the public, but there are rules prohibiting the taking of photographs, audio recordings or video. New offences have been created to ensure such restrictions are observed for virtual hearings.

Care must be taken to ensure the public still has sufficient access and the media is able to report on remote hearings, which will be viewed either on court premises or via remote access. Those looking on via remote must apply for permission and turn off their microphone and camera during the hearing.

The courts face a heavy workload, which has been made worse by disruptions arising from the pandemic. The flexibility to hold remote hearings is necessary to ensure greater efficiency and to make the most of developments arising from the pandemic, such as for urgent cases. There is a need to make better use of technology in the courts, but the advances, while welcome, must not compromise fair and open justice.