Questions about fairness remain if remote hearings to become permanent

Access to justice was rightly emphasised in a recent consultation document as a key concern yet the perception of access to justice was not considered, writes Vikki Melville and Gordon Keyden

The pandemic impacted all elements of our daily life, and it will continue to do so. Working from home, online socialising and teaching remotely all became the norm in a way that had seemed inconceivable.

However, what of online justice? The increased use of digital technology as part of the overall modernisation of the civil court system was already being implemented prior to the pandemic, albeit to a limited extent and slowly. Nonetheless, Herculean efforts were required to keep the Scottish justice system running from March 2020 onwards.

Thescottishcourtsandtribunal Service, and all court users were forced, at short notice, to adapt to electronic administration and virtual hearings. After initial teething problems, the newfound way of dealing with litigation allowed cases to be raised and progress through the system as best as possible. Yet it is important to take stock. As and when we are able to move away from restrictive measures,whatisthelikelihoodofmeasures such as electronic hearings remaining in place? Perhaps more importantly just because they can remain in place, should they?

The Scottish Civil Justice Council (SCJC) conducted a recent consultation. Concluding in November, it asked for opinions on proposed newrulescoveringthemostappropriate mode of attendance at civil hearingsinthecourtofsessionand the sheriff court, as well as moving from a substantially paper-based administration to electronic digital working.

Some of the draft rules propose to permanently formalise the use of electronic hearings in specific situations in the civil court system, and also make them the preferred method in other instances, unless thepartiesargueotherwise.inother words, remote hearings would becomethedefaultpositionrather than in-person hearings.

Electronic or virtual hearings carry benefits in certain circumstances, including a reduction in costs, administration and time. However, the perception of ‘virtual justice’ can be somewhat negative compared to in-person hearings. This may be particularly relevant in substantive or contentious hearings, and where individuals feeltheydeservetheir‘dayincourt’. Thedraftrulesalsoseektoadvance changes at a time when the court systemisinacontinuedstateofflux due to the pandemic. Temporary adaptation to forced circumstances is much different to permanent changerequiringsignificantinvestment in technology.

However even with the most efficient technology, we shouldn’t understate the impact of full-time virtual working on mental wellbeing. In-person hearings afford regular opportunities to engage in face-to-face contact between individuals outside the doors of the court. In a similar vein, the ability forjuniorlawyerstolearnthetools oftheirtradefromothers,aswellas helping to establish their own peer network, is diminished.

Access to justice was rightly emphasised in the consultation yetnoempiricaldataontheimpact of the proposals on the public was provided, and the question of the perception of access to justice was not considered.

Correspondingly, the quality of access of justice must be paramount.oneproposalindicatesthat hearingsdealingwithapointoflaw of importance should be handled in-person. This suggests there is an implicit acceptance that in-person hearings are a superior option in certain instances, and ties into theperceptionofjusticeviaremote means.anychangesmustbemindful of these issues.

The pursuit of digital measures shouldnotbeattheexpenseoffairnessandaccesstojusticewithinthe civil justice system. Any changes proposedshouldbebasedonaproportionateandmeasuredresponse to the views of those who are using (and paying to use) the court on a regular basis.

Vikki Melville, Managing Partner for Scotland, and Gordon Keyden, Consultant, Clyde & Co